Prisons: Education
 - Question

Baroness Blower: To ask His Majesty’s Government what assessment they have made of the potential merits of bringing the delivery of prison education into the public sector.

Lord Bellamy: My Lords, core education in prisons is delivered by four providers: three classified as public sector providers and one as a private sector provider. Wider, non-core prison education is delivered by a range of suppliers, including the third sector. We are engaging with the market to encourage new providers to work with us to deliver high-quality prison education. We do not currently envisage fundamental change to the present system of outsourcing core delivery to specialist education providers.

Baroness Blower: Does the Minister agree with me, Charlie Taylor and the Education Select Committee that education is fundamental to rehabilitation, so the fact that current providers do not have teaching prisoners to read as their responsibility is staggering? Can the Minister agree to look, at least, at the launch of the prisoner education service as an opportunity to bring all prison education back into the public sector, with standardised curriculum and qualifications, which are so important when prisoners are moved, and standardised education staff contracts to assist with recruitment and retention?

Lord Bellamy: I thank the noble Baroness for her question. The Government entirely agree that prison education is vital for rehabilitation. In the Government’s view, it does not follow that education, particularly in relation to reading, should be brought back into what the noble Baroness describes as the public sector. Specifically on reading, I can report the Chief of Inspector of Prisons’ remarks of yesterday. Following his report last year, he considers that we are seeing some improvement in reading and that there are encouraging signs of good developing practice in relation to reading education in prisons.

Baroness Meacher: My Lords, as a member of the Justice and Home Affairs Committee, I know that the Minister has recognised the huge importance of prison education. Have His Majesty’s Government assessed the potential benefits of doubling the prison education budget, and, in particular, have they assessed the impact of such a policy shift on reoffending rates?

Lord Bellamy: My Lords, the Government currently spend about £125 million a year on the core programme and a further £30 million on special development strategies. In relation to the future, we are developing new contracts from 2025, and I am sure the question of the budget will arise in that context.

Lord Cormack: My Lords, the noble Baroness, Lady Blower, made the point about rehabilitation being so vital. Can my noble and learned friend publish statistics to show the variable reoffending rates between those who do not get qualifications and various other things from education in prison, and those who do? I think this could be very interesting and salutary information.

Lord Bellamy: My Lords, the Government are committed to improving the statistics in this area, and I will investigate whether we can publish that further information.

Baroness Burt of Solihull: My Lords, the best education in the world, public or private, is useless if there are not the staff there to enable prisoners to get out of their cells to receive it. But if they could, the education service has been carved up by just four main providers, and governors have little or no say in who delivers education in their prisons. The House of Commons Education Committee report has already been mentioned. What are the Government going to do about this issue?

Lord Bellamy: Staffing levels are a continuing problem, but full-time equivalent prison officers have increased by 3,677 between 2016 and December 2022; it now stands at 21,632. In the Government’s view, there is no problem with the quality of our existing providers. The challenges of prison education are evident to all, and the Government are doing their best to tackle them.

Lord Harris of Haringey: My Lords, when I conducted the review into self-inflicted deaths in prison some years ago, a very substantial issue arose about the cancellation of education sessions simply because there were insufficient staff to transport prisoners to education venues within prisons or, alternatively, because prisons were locked down. What proportion of education sessions do not go ahead for the reasons I have described? If those statistics are not collected, could the Minister explain why this rather important performance indicator is not looked at?

Lord Bellamy: My Lords, I cannot give the noble Lord the information he rightly seeks, but I will see if I can. Attendance at classes is an ongoing issue. It is sometimes due to staff shortages. We have introduced new KPIs for prison governors which include attendance, among other things, so I hope to see improvement in this area.

Lord Bellingham: My Lords, would the Minister agree that a vital part of prison education is to help former offenders into gainful employment at the end of their sentence? A number of businesses such as Timpson, under the inimitable Sir John Timpson,  have done pioneering work in this field to help prevent recidivism. What more can the Minister do with his department to encourage other firms to follow Timpson’s example?

Lord Bellamy: My Lords, I entirely agree with my noble friend in paying tribute to Timpson. There are many other employers with which we are in close touch. The Prison Service has recently introduced prison employment advisory boards in all prisons and an employment innovation fund, and heads of education, skills and work will be established across the prison estate. This is all to improve post-prison employment, which is, I am glad to say, on the increase.

Lord Addington: My Lords, would the Minister agree that prisoners have probably the highest density of special educational needs of any group in society? All these groups need different learning patterns compared to the norm to be successful. Is the prison education service equipped to, first, identify and, secondly, provide the extra different types of learning to this client base? If not, it is not going to succeed.

Lord Bellamy: I agree with the noble Lord that the Prison Service needs to be equipped, and I respectfully suggest that it is. There are a whole range of things here. There is the core curriculum, which is made up of English, maths and digital skills; vocational courses, such as construction; personal development courses; and digital personal learning plans. I assure the House that the Government are on the case and working hard to improve matters.

Baroness Wilcox of Newport: My Lords, the Open University offers a range of introductory access modules funded by the Prisoners’ Education Trust, under the banner of “Steps to Success”. They have been specifically designed to help students find out what it is like to study with the OU, get a taste of a subject area, develop study skills and build confidence. As a former teacher, I can tell your Lordships that those things are vital. Does the prison estate have the facilities to offer such excellent distance learning, and who would meet the cost of these courses that are on offer?

Lord Bellamy: My Lords, there is a problem within the prison estate in relation to distance learning from external providers, because most prisons do not have external access to the internet. There is an intranet, and it may well be that in due course organisations like the Open University are encouraged to access that facility. But I take the noble Baroness’s question and will investigate further.

Baroness Boycott: My Lords, I am sure the noble and learned Lord knows about the Clink Charity, which sets up restaurants in prisons where prisoners are taught by chefs and then serve meals to the general public. If any noble Lords do not know about this, I urge them to go to the one in Brixton. These now have a 49.6% rate of lowering reoffending, because prisoners come out with a job and a skill and somewhere to sleep, which is arranged. This all depends on the  good will of the governors. Can the Minister assure the House that he will encourage such projects? I think there are seven now, but there could be many more.

Lord Bellamy: My Lords, the answer is yes. Prison governors are now specifically required to have regard to developing employment opportunities for those in prison, attendance rates at courses and other matters. I pay tribute to Clink, which is a very well-known and respected organisation. Similar programmes are being offered by other employers, and this is all, I respectfully suggest, good progress.

Baroness Fox of Buckley: My Lords—

Baroness Chakrabarti: My Lords—

Baroness Williams of Trafford: My Lords, it is the turn of the noble Baroness, Lady Fox.

Baroness Fox of Buckley: My Lords, in my experience with broader education projects such as Debating Matters Beyond Bars, I have found that private sector prisons can be more flexible and less bureaucratic than some state-run prisons. Does the Minister agree that we should focus less on who provides prison education and that education should be given far more priority? Does he also agree that prison education should not be limited to literacy, as it often is, but should be far more imaginative?

Lord Bellamy: My Lords, the Government regard prison education with high priority and are working to improve its imaginative and innovative aspects all the time.

Leasehold Reform
 - Question

Lord Kennedy of Southwark: To ask His Majesty’s Government when they intend to introduce legislation to end the residential leasehold system.

Lord Kennedy of Southwark: My Lords, in begging leave to ask the Question standing in my name on the Order Paper, I refer the House to my registered interests and the fact that I am a leaseholder.

Baroness Scott of Bybrook: My right honourable friend the Secretary of State set out in the Commons his intention to bring the outdated and feudal leasehold system to an end. The Government wish to extend the benefits of freehold ownership to more home owners. That is why we have committed to end the sale of new leasehold houses and to reinvigorate commonhold so that it can finally be a genuine alternative to leasehold. We will bring forward further reforms later in this Parliament.

Lord Kennedy of Southwark: My Lords, I thank the Minister for her response. The residential leasehold system is not fit for purpose. The Government need to make significant progress in this Parliament, as they promised. We are running out of time, and the purpose of my Question today is to seek absolute  clarity. Will the Bill we are going to get in the next Session of Parliament abolish residential leasehold as a tenure? The answer is either yes or no.

Baroness Scott of Bybrook: Leasehold—the noble Lord is not getting a yes or no—is increasingly seen as an outdated form of home ownership and, as I said, the Secretary of State has set out his intention to bring this outdated and feudal tenure to an end. I cannot set out the precise details of the future plan at this stage. However, the Government are committed to creating a fair and just housing system that works for everyone, and we are taking forward a comprehensive programme of reform to end unfair practices in the home ownership market by reinvigorating commonhold, which will also give developers and buyers of flats a genuine alternative to leasehold.

Lord Young of Cookham: My Lords, these are difficult times for leaseholders. Many face high service charges as a result of the cladding scandal, while others, as my noble friend just said, are exploited by a minority of freeholders, and there is uncertainty in the market while we await the Government’s reforms. Can my noble friend do more to publicise the existence of a free, independent advisory service for leaseholders, which is supported by her department, and can she give an assurance that it will have the resources and skills to meet demand?

Baroness Scott of Bybrook: I think my noble friend is probably talking about LEASE, which is a government-sponsored arm’s-length body. The Government provide £1.9 million of funding every year so that leaseholders and park home owners can get free information and advice. We recognise that these people face some parallel complexities and lack of control over some of their properties. We are looking at LEASE—a new chair is being recruited at the moment—and we are looking for it to be a little more impactful, customer friendly and cost effective into the future, as well as leading important work to ensure that the voices of leaseholders and park home owners are listened to.

Baroness Watkins of Tavistock: My Lords, can the Minister assure the House that the future legislation will take careful consideration of issues relating to retirement homes and villages?

Baroness Scott of Bybrook: I am sorry—somebody was talking behind me. Can the noble Baroness please repeat that?

Baroness Watkins of Tavistock: My question was about ensuring that the future legislation will take into consideration retirement villages and communities.

Baroness Scott of Bybrook: Absolutely. It is extremely important; if the noble Baroness was in the Chamber last night she would have heard us talking about the planning system as well, making it clear that with an ageing population we need to consider homes of all types for older people in the future.

Lord McFall of Alcluith: My Lords, the noble Lord, Lord Campbell-Savours, is participating remotely.

Lord Campbell-Savours: My Lords, have Ministers noted the large number of leasehold ground rent investments on property auction sites, as landlords, aware of potential changes in the law affecting valuations, offload their leasehold ground rent investments? Innocent non-professional buyers, ignorant of potential changes in the law, are now buying them—caveat emptor—placing themselves at risk of substantial loss. Should government not consider secondary legislation which would alert an innocent market to the dangers of buying these leasehold ground rent investments?

Baroness Scott of Bybrook: The noble Lord brings up a very interesting point. I will take it back to the department and we will discuss it further. These are the sorts of issues that LEASE will be helping potential buyers work their way through.

Lord Naseby: My Lords, since there is a considerable challenge in the housing market, arising partly from Grenfell and the related programme, and there is a shortage of homes at every single level, is this not a case where His Majesty’s Government need to move with speed but also with thoroughness before we take any action?

Baroness Scott of Bybrook: My noble friend is absolutely right. Leaseholder issues are complex and contain a lot of legal issues that need to be dealt with. Therefore, we need to take our time, and we are doing so, but the government manifesto says that we will deal with this issue within this Parliament, and we intend to do so.

Viscount Hanworth: My Lords, the Minister will be aware that freeholders have been empowered to impose the costs of any litigation that has been initiated by an aggrieved leaseholder upon that leaseholder. When will that extraordinary anomaly in British law be corrected?

Baroness Scott of Bybrook: The Government recognise that the existing statutory requirements do not go far enough to enable leaseholders to identify and challenge those unfair costs. We believe that leaseholders should not be subject to unfair legal costs and should be able to claim them from their landlords, and we are taking action to address that.

Lord Stoneham of Droxford: My Lords, in 2020 the Law Commission recommended commonhold ownership as an option. I thought the Minister committed to that in her Answer. Can she tell us how the Government see this proceeding, and is it one of the principal options that the Government are looking at?

Baroness Scott of Bybrook: The Government are looking at all options but, as the Secretary of State has said on a number of occasions, we are looking at commonhold.

Lord Anderson of Swansea: My Lords, the only potential benefit I can see is inserting restrictions on non-conforming developments, which the leasehold system provides. It is a good start to call the system outdated and feudal, but can non-conforming developments be prevented by other means, such as the planning system?

Baroness Scott of Bybrook: The planning system will have to be looked into, but I can say that, interestingly, through the recent rent Act, new builds are now no longer or are very rarely leasehold—they are now freehold—so the developers themselves are looking at this. It is more complex in flats and with multiple occupancy, but in terms of houses very few leasehold properties are available.

Lord Kamall: My noble friend the Minister will be aware that in many cases the freeholder is a local authority. Can she advise us on what conversations her department has had with local authorities across the country, or representative bodies of local authorities, to make sure that they make it easier for leaseholders to acquire their properties?

Baroness Scott of Bybrook: I will write to the noble Lord with all the details of those conversations. They are being had, but I will give him more information when I write.

Lord Kennedy of Southwark: My Lords, can I just draw the Minister’s attention to some of the excellent Private Members’ Bills, including my own, which seek to address some of the issues that the Minister herself wants to address?

Baroness Scott of Bybrook: I certainly hope that we get our Bill in before the noble Lord’s.

Baroness Bennett of Manor Castle: My Lords, community land trusts, co-housing schemes and co-operatives offer different models focused on building community, delivering for the common good rather than focusing on individual profit. Will the Government look into how they can strongly support these creative, innovative models of housing?

Baroness Scott of Bybrook: The Government do support those forms of housing. We will continue to do so and will look into how we can support them more in the future.

Data Protection
 - Question

Lord Davies of Brixton: To ask His Majesty’s Government when they intend to introduce legislation on the United Kingdom’s data protection framework.

Viscount Camrose: My Lords, the Data Protection and Digital Information (No. 2) Bill was introduced to Parliament  on 8 March. It seizes our post-Brexit opportunity to create a new UK data rights regime. It will now be subject to the usual parliamentary processes, starting with Second Reading in the other place, the date for which will be announced in due course.

Lord Davies of Brixton: I first welcome the Minister to his new role on the Front Bench, particularly given his undoubted expertise. However, I must ask him whether he understands the concerns of many at the proposal to allow NHS data to be uploaded to a data system based on tech from Palantir—of Cambridge Analytica infamy—that will offer inadequate data protection to patients? These concerns have only been increased by the Secretary of State’s claim that one of the purposes of the Bill is to give organisations greater confidence about the circumstances
“in which they can process personal data without consent.”
In other words, the Bill will reduce protection to individuals, not increase it, with one result being that some people will not seek the medical attention that they require.

Viscount Camrose: I thank the noble Lord for his question. My first observation is that Palantir is a very good illustration of some of the new technology providers we are seeing, because the value it was able to provide and demonstrate is very great. However, the perfectly legitimate concerns about data privacy are, none the less, equally great. Any organisation operating in the UK or processing the personal data of people in the UK must comply with our strong and internationally renowned data protection laws, and those laws set out robust penalties for those who do not, including, as necessary, Palantir. Lastly, with respect to the Secretary of State’s remarks, the intention is by no means to reduce the requirement for data protection, merely in some cases to make it more straightforward to demonstrate that the requirements are being met.

Lord Clement-Jones: My Lords, I join in welcoming the noble Viscount to the Dispatch Box in his role as the first Minister for AI and IP—I think it is the first time those two responsibilities have been joined together. I wish him every success. Given that there is a new data protection Bill in the Commons, does he agree that it would be highly damaging to our AI developers if we were to diverge too widely from the EU GDPR and risk access to the datasets on which they rely so heavily?

Viscount Camrose: I thank the noble Lord and pay tribute to his expertise and knowledge in the area, of which I look forward to taking full advantage. The EU adequacy requirements are uppermost in our minds in continuing our ability to maintain the data relationship with it. I note that EU adequacy does not set out any particular legislative requirements to maintain adequacy, judged as it is on outcomes of data protection rather than its specific mechanisms. I am told that there are currently 14 jurisdictions that meet EU adequacy but have different legislative approaches to acquiring it. Our well-founded ambition is to be among them as well.

Lord Holmes of Richmond: My Lords, I welcome my noble friend to the Front Bench and declare my technology interest. Does he agree that data is completely pervasive and all around us, that data literacy is critical and should be taught from the kindergarten right through life, and that data privacy is a key element of such data literacy teaching?

Viscount Camrose: I thank my noble friend for his question and pay tribute to his well-known expertise in the area. Public confidence in the huge mass of data and in the changing systems and tools that use it is absolutely key. This goes into AI, cybersecurity and a range of other areas. That is why education for public confidence will be a key part of the Government’s strategy.

Earl of Kinnoull: My Lords, I suggest that the Minister looks at the EU’s data adequacy decision. It is 52 pages long. The decision is a dynamic one and comes up for renewal on 27 June 2025, which is quite close by. It was good to hear that the Government are having regard to all the various international data adequacy decisions that we benefit from, but I suggest that it is important to engage in conversation and discussions with the EU to bring it along. This is quite complex, and its decision is quite nuanced.

Viscount Camrose: I thank the noble Lord for his question and his suggestion. We will of course be engaging with the EU throughout, and we are under no illusions as to the importance of maintaining our adequacy arrangements with the EU.

Lord Collins of Highbury: My Lords, I welcome the noble Viscount to his new position. He says that the new Bill should be an opportunity to develop data regulations to put Britain at the forefront of the data revolution. However, instead of setting out a clear regime for the sector, it further complicates what is an overcomplex legislative area. I urge the noble Viscount to work with the Labour Party to ensure that this Bill is what the country needs, rather than just a series of patchwork amendments and more sweeping powers.

Viscount Camrose: I thank the noble Lord for his kind words of welcome. I am absolutely willing to work with the Labour Party. I do not believe there is an ideological divide in approach, but more a pragmatic question of how we get this done. I observe that the overall economic impact of the Bill will contribute £4.7 billion of growth over the next 10 years; it is important to bear that in mind. When we discuss the Bill further, the noble Lord may come to feel that the characterisation of it as patchwork or disorganised is not entirely fair, but I look forward to working with him.

Baroness Blackwood of North Oxford: My Lords, I welcome the Minister to his place. The AI regulation policy paper published last July set out a framework for fostering responsible innovation in AI. It included principles such as ensuring AI is secure and operates as designed, is transparent and explainable, and embeds principles of fairness and redress. Given the accelerating LLM models and their rapid inclusion  in daily life, can the Minister give the House some idea of how these principles might be included in the upcoming Bill?

Viscount Camrose: The AI regulation White Paper is due for publication next week and my noble friend will see a lot of that detail set out in it. I observe for the time being that the approach is, as far as possible, to maintain sectoral regulation where it is but apply the principles that she mentioned over the top of it. I look forward to working with her on the AI White Paper, which I hope will set her concerns to rest.

Lord Allan of Hallam: My Lords, following up previous questions on adequacy, the Minister will be aware that these are ultimately matters for the European Court of Justice, where any Commission decisions can be challenged—and are often struck down, as the United States has found to its cost. Given the likelihood that any decisions of adequacy in respect of the revised UK law will be challenged, what preparations are the Government making so that they are out there, defending the interests of British business in front of the European Court of Justice in future? That is an easy question for the Minister’s first day out.

Viscount Camrose: I thank the noble Lord and am always very much in favour of easy questions. As the Bill progresses through Parliament, we will indeed be engaging with the EU, as he suggests. I share his view that this is something we have to take extremely seriously and have proper preparation and engagement throughout.

Lord West of Spithead: I welcome the Minister to the Front Bench and his new role. In this new role, particularly its AI aspects, can he go across government—particularly into the MoD—to look at the use of AI and weapon systems and how that is moving forward, because there are some worrying areas?

Viscount Camrose: I thank the Lord for his welcome. I should declare that I was previously a member of the Committee on AI and Weapon Systems before taking up my ministerial post. As for the niceties of the machinery of government, I must confess that I do not yet understand them, but I am very happy to write to the noble Lord once I understand more.

Avanti West Coast
 - Question

Lord Goddard of Stockport: To ask His Majesty’s Government how they justify further extending the contract for Avanti West Coast, given its service record over the last six months.

Baroness Vere of Norbiton: My Lords, Avanti was awarded a six-month contract in October 2022 to provide the opportunity for its recovery plan to yield demonstrable improvements. It has done this, with services increased and delays and cancellations  reduced. In this next six-month period, Avanti will need to do more to win back passengers with a reliable and dependable service. With accountability comes the chance to put things right.

Lord Goddard of Stockport: I thank the Minister for another magnificent effort in defending the indefensible. My question is quite simple. Will she agree to meet with me, as a frequent flyer on Avanti trains, to hear the other side of the coin? Tuesday’s Hansard reports her commenting that not all train delays are due to Avanti, which is true. The other side of the coin is that Avanti has completely changed the rosters and rotas for staff. They are now on 10 and 11-hour shifts, meaning that they have a 20-minute window at any station they land at before leaving it. If the train is 30 minutes late, there is no time to change. The next train is then late, and it is an ever-decreasing circle. This is affecting the staff.
The Minister also commented about sickness levels. Staff on Avanti trains feel undervalued and overworked, which cannot be a recipe for an outward-facing railway system. If Avanti cannot treat its staff with respect when all they want to do is give us a good service, somebody else should be looking after that railway system.

Baroness Vere of Norbiton: I would be very happy to meet with the noble Lord to discuss Avanti, but I hope to offer him something slightly better—a meeting with the Rail Minister. I will extend that offer to all noble Lords so that we might discuss the issues that they are experiencing on Avanti. He might be able to reassure the noble Lord that we are taking these issues very seriously and want Avanti to put them right.

Baroness Bryan of Partick: My Lords, as a Scottish user of Avanti, I hope the Minister understands the despair that we felt when we heard this decision. On the west coast, we look in envy at the east coast trains. Can she explain why the west coast line was not taken into public ownership after such a disastrous performance?

Baroness Vere of Norbiton: I am aware of some of the challenges of travelling down the west coast from Scotland. Many of them are due to infrastructure changes happening in the north of England. Sometimes it is tempting to compare the west coast with the east coast. One other element of the east coast that is worth thinking about is that it has competition. There are open-access operators on the east coast as well. That is a contributing factor to making the services better all round.

Baroness McIntosh of Pickering: My Lords, my noble friend will be aware of the severe delays and disruption caused by TransPennine Express, which seems to be competing very well with Avanti on its record. Will she update the House on the Government’s plans for a possible renewal of such a hopeless operator? Will it be allowed more time, or will it be put out to tender for other franchise operators?

Baroness Vere of Norbiton: The current contract for TransPennine Express comes to an end on 28 May. It too is under a recovery plan, but TransPennine Express and Avanti have one thing in common that no other train operating company shares: they have suffered the immediate and simultaneous withdrawal of rest-day working by the trade unions. That has had an enormous impact on their services. It is worth bearing in mind that no other train operating company has had that.

Baroness Taylor of Stevenage: My Lords, it is disappointing to hear the Minister again blaming the workforce for the problems of Avanti. Rail passengers in the north-west and Wales will have greeted the six-month extension to Avanti’s contract with incredulity. Over the past six months it has broken records for delays and cancellations yet, astonishingly, earlier this week the Times reported that the Government could offer Avanti a further 10-year extension at the end of this six-month extension. Can the Minister please now rule this out?

Baroness Vere of Norbiton: I am absolutely not blaming the workforce here. I have never said that I was, but the noble Baroness will be unsurprised to hear that I am putting a little blame at the door of the trade unions. On the process for the next round of contracts for the west coast—because there will have to be a contract—the publication of the 10-year period was a statutory notice. Should it go to Avanti, the six-month contracts would be taken off it. Should it go to another operator, it might be for up to 10 years. The noble Baroness should not read too much into it; it could be any period up to 10 years.

Bishop of Manchester: My Lords, as a fellow traveller on Avanti, often in the same coach as the noble Lord, Lord Goddard, I agree entirely with his comments. It is not only that trains are delayed or cancelled; sometimes the services on those trains are not provided, particularly food. These are long journeys and often at the very last moment, when you are sitting on the train and have been told that there will be food, you are then told, “We haven’t been able to load the food; there are no refreshments on the journey”. Can we please bear in mind that it is a whole service? The staff are wonderful, but they are labouring against impossible circumstances at the moment.

Baroness Vere of Norbiton: The right reverend Prelate is entirely right. That is one of the things on which we hold Avanti to account. Passenger experience is at the heart of what we want to do with our railway system, and as we look to the future for Avanti, and indeed for all train operating companies, passenger experience is one of the key things that they are judged on.

Baroness Randerson: My Lords, since Avanti has been rewarded with more after such a record of failure, what incentive is there for other train operating companies to maintain the highest standards and to improve? When the Minister gave us her answers on the Statement the day before yesterday, she was not specific. Can she make clear now whether Avanti will face financial penalties for its failures over recent months?

Baroness Vere of Norbiton: All train operating companies face financial penalties or financial jeopardy from their performance, as all train operating companies have performance fees. When the current period comes to an end at the end of March, there will be an independent evaluation of Avanti’s performance, and performance fees will be set accordingly. Two issues really impact performance at the moment—the ongoing issues around train crew and availability, and growing concerns around infrastructure, which is why our reforms to bring track and train closer together are so vital.

Lord Snape: My Lords, is the Minister aware that in the last quarter of 2022, Avanti achieved a historic low, with only 45% of its trains on time? Sad character that I am, I have looked back through the statistics on train travel on the west coast main line. That 45% low never happened under British Rail, the London, Midland and Scottish Railway or the London and North Western Railway. I gave up when it came to the London and Birmingham Railway in the 19th century because I was bored with my own research. Is it fair or right that, despite that historic low, taxpayers should fund dividends to shareholders and bonuses to management while those of us who travel regularly on Avanti would rather walk than catch a train?

Baroness Vere of Norbiton: I am delighted to be able to tell the noble Lord that currently 90% of Avanti trains arrive within 15 minutes of their scheduled arrival time. That is up from 75% in early January. I am sure that noble Lords can see the trajectory. The dividend to which he refers related to a financial period to March 2021, well over two years ago now and not related to the current performance issues.

Lord Reid of Cardowan: My Lords, I have been travelling on the west coast line for more than 40 years. Admittedly this is anecdotal, but my experience was that until Covid the service was actually quite good on Avanti. So was Virgin before Avanti. It was certainly better than the east coast line, quite apart from the fact that the east coast line went to Edinburgh whereas the west coast line went to the fair city of Glasgow.
Twice the Minister has mentioned infrastructure problems. Historically that was the problem with the east coast line, but there was sufficient investment to improve it. What is the nature of the infrastructure problems on the west coast line and why have they not been dealt with in the 13 years that the Government have been in charge?

Baroness Vere of Norbiton: The Government are putting record investment into our railway infrastructure. There are two issues around infrastructure. The first is the long-term plans that need to be put in place to upgrade it, but there are also short-term issues. For example, overnight there was cable theft at Wolverhampton. Cable theft is not Avanti’s fault, but it has caused some of its trains to be delayed this morning. We have to clamp down on the short-term problems but also continue to invest in the west coast main line, which is exactly what we are doing.

Electricity Supplier Obligations (Green Excluded Electricity) (Amendment) Regulations 2023
 - Motions to Approve

Lord Callanan: Moved by Lord Callanan
That the draft Regulations laid before the House on 8 and 20 February be approved.
Relevant document: 32nd Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 20 March.
Motions agreed.

Strikes (Minimum Service Levels) Bill
 - Committee (2nd Day)

Relevant documents: 10th Report from the Joint Committee on Human Rights, 27th Report from the Delegated Powers Committee, 14th Report from the Constitution Committee

  
The Schedule: Minimum service levels for certain strikes

Amendment 14

Baroness Randerson: Moved by Baroness Randerson
14: The Schedule, page 3, line 31, at end insert—“(5) Regulations made under this section in relation to strikes affecting services in an area for which an elected mayor is responsible may not be made without the consent of the elected mayor for that area.”Member’s explanatory statementThis amendment would require the consent of the relevant elected mayor before minimum service levels could be set in relation to an area for which an elected mayor was responsible.

Baroness Randerson: My Lords, I will speak to the amendments in the group starting with Amendment 14 in the name of my noble friend Lord Fox. This group is all about devolution. The Government have hyped up their commitment to devolution in England, so Amendment 14 is in line with the proposals in the levelling-up Bill and in Bills on the powers of existing mayoral authorities. In England, an increasing number of those have great powers over transport—for example, bus franchises—so it is logical that elected mayors should be consulted by the Government before they intervene with minimum service levels.
I move on to Amendments 19 and 49 in my name, which refer to the much stronger devolution that has existed in Wales and Scotland and, we hope, will be returned in Northern Ireland in due course. Amendment 19 refers to Part 1 of the Schedule, which relates to minimum service level regulations that may  be applied by UK Government Ministers to the list of services specified in the Bill. The key point is that most of these services—health, fire and rescue, education and most of transport—are devolved. Only the decommissioning of nuclear installations, management of radioactive waste and so on, and border security are reserved matters falling to the UK Government. Once again, we have this Government riding roughshod over the core business of devolution. Even border security could be argued to be a very legitimate interest to the devolved Administrations. For example, the Welsh Government owns and runs Cardiff Airport, and that would clearly be directly affected if there were a dispute with border security staff. Similarly, the safe and efficient operation of the several very important and significant Welsh ports is of direct concern to the Welsh Government. In practice, you could not impose a minimum service level without consultation and close co-operation.
I need to point out here that the Welsh Government have a much more positive relationship with public sector trade unions than that between the UK Government and trade unions in England. Although they have not totally avoided strike action in Wales recently, it has certainly been much less intense and acrimonious. The Welsh Government have adopted more of a social partnership approach, and we have seen none of the provocative rhetoric that we have seen in England.
Amendment 19 is very modest: it simply asks for an obligation for proper consultation with Welsh and Scottish Ministers before regulations are made. It reflects similar provisions in the Civil Contingencies Act 2004. It specifies that a senior Minister of the Crown should undertake this consultation because we have lately had repeated evidence that this Government have failed to interact at the appropriate level with Ministers in the devolved Administrations, whom they seem, on occasion, to regard as insignificant juniors. Very recently, in the debate on the retained EU law Bill, we were repeatedly referred to officials as the appropriate level for such links. If the UK Government decide to intervene to specify minimum service levels for devolved services, that is a political decision, and the very least that they should do is ensure that Ministers take the lead in that political process.
Quite apart from the need to respect devolution, there is considerable scope for confusion if the UK Government decide to define what they regard as an MSL without close liaison with the devolved Administrations. Let us take health as an example: waiting times for treatment are defined differently in Wales and England, as are ambulance response times, so one size definitely does not fit all. The very simple Amendment 49 takes a much more radical approach. By leaving out “Wales and Scotland”, it would limit the extent of the Bill to England. That would reflect the points that I made previously: most of the public services specified are devolved, and even those which are not have a close interaction with devolved services.
During the pandemic, for instance, we became acutely aware of the differences in organisation and ethos between the UK Government’s approach and that taken, for instance, in Wales, but which I also observed  in Scotland. There are plenty of stresses in the delivery of Welsh public services. I do not defend the current standard of some of those. They are under acute stress. If this comes to a head in the form of strikes, it is unlikely that dictation from the outside by the UK Government will help the situation.
Finally, I remind noble Lords that the UK Government are just the Government for England when we talk about strikes in schools or in the NHS, for instance, and other services specified in the Bill.

Lord Thomas of Cwmgiedd: My Lords, I speak in support of Amendment 49. All the points arise in relation to it, so I do not think it necessary to go into the other amendments. I will make six points.
First, I do not believe that it is contested that a number of the services covered by the Bill are effectively within the control of the Governments of the nations of Scotland and Wales, and that is reflected everywhere in the consultation that has so far been made. However, when you take that, you have to consider whether you can disentangle services during periods of strikes from services elsewhere. On our previous day in Committee, the noble Lords, Lord Kakkar and Lord Patel, eloquently put why it is quite impossible to disentangle them. What I simply do not understand at the moment is why, if you have a minimum standard on a strike day, that is not the minimum standard across all these areas on every other day. How can the public be expected to think that in strikes there is a minimum standard? There is not.
This is a critical point because it goes to my second point: the purpose of this Bill. The Government, relying, no doubt, on their legal advice, take the view that this has nothing whatever to do with Wales and Scotland. They assert as a matter of constitutional law that this is an entirely reserved matter. With her usual clarity, the noble Baroness, Lady Noakes, explained the purpose of the Bill, which is what I tried to summarise in my first proposition: it is to do with services; it is not a Bill to do with industrial relations, employment rights and duties. Clearly, this is not a reserved matter and therefore, you need a legislative consent Motion. Unfortunately, the question of whether you need a legislative consent Motion has fallen into disuse. It is a real problem, which I have raised many times in this House, that the Sewel convention is in serious danger of not being a convention any longer.
You can look at the legal analysis from a different point of view, but that is sufficient because you pick up in there the point that, even if this whole thing can be disentangled, you ought to realise that this is not a matter entirely for the Government of the United Kingdom but for the Governments in Cardiff and Scotland. Even if you do not agree with my analysis of the law, it is really important that you engage with those Governments—a point picked up in the earlier amendment. I am always extremely grateful for the very warm words of the Minister on this but, as many have said, you are judged by your deeds, not your words. The deeds in this case are all one way, and that is to try to whittle down the powers of the devolved legislatures in Scotland and Wales and thereby weaken the union.
My third point is that even if you could disentangle and ignore what was said in the previous debate, and even if you do not want to engage, it is not practical to think that Secretaries of State in England can make decisions in respect of minimum service levels in Scotland and Wales. One of the consequences of devolution has been that the ignorance in Whitehall of how these services are run in Wales and Scotland increases year by year. It is not a criticism; it is just the fact of devolution. Let us take, for example, education. We have no idea yet how they are proposing to specify minimum standards in education. I assume that the Secretary of State is competent to decide the minimum standard so, if you go by subject matter, what is the minimum standard of bilingual education to be? It is not something that I imagine engages the Whitehall mandarins in the department concerned with education. You can multiply this—the ambulance service, for example—right across the spectrum. So, even if it is possible to do it and even if you ignore the devolution settlement, it is simply not practical.
I go on to my fourth point. Even if practical, the effect is to remove responsibility from the person who deals with the workforce. I know this Government have great skill in industrial relations, but in saying that the Bill is all about industrial relations—which, of course, it is not; it is to do with minimum standards—they obviously feel that by imposing their own views on industrial relations on those responsible for the negotiations in Wales and Scotland, they can do better. I am not sure that their track record really justifies that conclusion. If one looks back to the events of recent years, the Governments in Scotland and Wales have generally been more successful in dealing with negotiations in relation to these services than His Majesty’s Ministers in Whitehall. What you are doing by this Bill is effectively taking away power from those who have responsibility for the negotiations. There is a well-known quotation about power without responsibility, to which is unnecessary to refer.
That takes me to the fifth point I want to make, which is that the consequences of this undermine democracy and accountability. One of the great virtues of this House is that it attaches great importance to accountability. By transferring responsibility for minimum services, the Bill is taking it away from those who are accountable to the people of Wales and Scotland. It is quite wrong that we should proceed on this basis.
My sixth and final point is this. When you sit and think, you must ask yourself, why is this Bill being put forward? Normally, as I understand the way we have traditionally been governed in this country, you work out the policy first and legislate second. What is happening in this Bill is that you legislate first and think second. Now that we turn to devolution, there is yet another problem. Had we proceeded in the right way, we would not be in the mess this Bill is getting us into. I suggest that if you look at the consequences for devolution, you see yet another reason why this Bill, a skeletal Bill, should not proceed. I shall add just one scintilla to that—it is a point I do not want to develop any further. This Bill is Henry VIII on stilts. Looking at a Bill of this kind, we have not yet examined whether you should put into such a Bill a clause that limits the Government’s power to override the devolution  settlement. I do not know. This is a subject that we ought to be debating, but I think it unnecessary to add to the length of what has already been too long a speech on these points.

Baroness Noakes: My Lords, since the noble and learned Lord, Lord Thomas of Cwmgiedd, used what I said earlier in aid of his arguments, I thought I ought to say a few words. First, unfortunately I do not speak for the Government in any respect. Indeed, the Government are generally to the left of my views, so my views are indeed my own. I have said that this Bill is about protecting service levels, in particular for those who have paid through their taxes for public services to be provided to them. That is the aim of the Bill. The means of the Bill is via trade union and industrial relations legislation. That is a reserved matter, and I think the Government have to accept the point.
Having said that, I of course agree that the devolved Administrations should be consulted on minimum service levels because they are bound to affect their citizens. I believe that the devolved Administrations would want to be involved in any consultation, to put across the views of their citizens as to the appropriate minimum service levels that their citizens should be demanding. However, I do not think it goes beyond that, and I do not think it is necessary to go to the extent of the amendment from the noble Baroness, Lady Randerson, which talks about meaningful consultation. They are of course going to be consulted on these matters.
When the noble Baroness, Lady Randerson, introduced Amendment 14, she very carefully said that elected mayors should be consulted. That is not what Amendment 14 says. It says that regulations cannot be made
“without the consent of the elected mayor for that area.”
That would mean, for example, that any minimum service level which affected a train service between London and Manchester could be vetoed by either the elected Mayor of Greater Manchester or the elected Mayor of London—or indeed Birmingham. That seems to me to be complete nonsense. I believe they should be consulted because they will want to input the views that protect services for the residents in their areas, but we should not go as far as requiring consent.

Baroness Bryan of Partick: My Lords, I speak in favour of Amendments 19 and 49 in the name of the noble Baroness, Lady Randerson, which try to mitigate in one and contain in the other the level of interference that the Bill intends to make into areas that are clearly devolved. This is in a long line of legislation that has trampled over the accepted responsibilities of devolved Governments. The United Kingdom Internal Market Act, the Nationality and Borders Act, the Subsidy Control Act, the Elections Act, the Levelling-up and Regeneration Bill and the retained EU law Bill are just a few of the Bills that have impacted on the devolved Administrations.
On this occasion, in the Bill’s list of six services to be targeted I found only one that was reserved and that was border security, though I take the point made by the noble Baroness, Lady Randerson, that airports and ports will be dragged into that. Health services, education, fire and rescue services, transport services  and the decommissioning of nuclear plants are devolved responsibilities, and the elected Members of the Scottish Parliament and the Welsh Senedd are ultimately accountable for the delivery of these services. The Minister and his colleagues have no electoral mandate to interfere in these services. Not only does the Bill seek to allow government Ministers to interfere in devolved areas of competency but it does not even have the good manners to outline in the body of the Bill how they would use these powers. Parliament is yet again being asked to put its name to a blank cheque.
It may surprise the Minister to know that both the Welsh and Scottish Governments have respectful working relationships with trade unions in their countries. In Scotland, the fair work framework has a different model of industrial relations from that adopted by the UK Government. The framework states that there are many examples in Scotland and elsewhere of how the collective voice of trade unions working with employers has addressed the wide range of organisational challenges and contributed to organisational improvements. The Welsh Government are committed to the Fair Work Commission in Wales, which respects and encourages trade unions to have a significant role in workplaces, society and policy-making. How different that is from the approach taken by this Government. These fair work arrangements do not prevent industrial disputes but allow constructive dialogue between government, employers and trade unions, so that when disputes occur there is greater good will to resolve them.
In support of these amendments, I particularly appreciate the insistence of the noble Baroness, Lady Randerson, that consultation must mean more than lip service, with Amendment 19 specifying that it must be
“with a view to reaching an agreement.”
Unlike the noble Baroness, Lady Noakes, I think it is important to have that in—how many consultations do we really believe have changed thinking?
While it would be better if the Bill is not taken forward at all, if it is, it should not apply in Scotland and Wales. I would support particularly then Amendment 49. What the Bill has achieved is a strong case for devolving employment law to Holyrood and the Senedd. As explained quite entertainingly and enjoyably by the noble and learned Lord, Lord Thomas, the Sewel convention has been abused time and again so that it is no longer meaningful. There is an urgent need to rethink the balance between the devolved Administrations and the UK Government. As we approach the 24th anniversaries of the opening of the Scottish Parliament and the Welsh Senedd, we should remember that these institutions were established to allow the people of Scotland and Wales to make decisions about how their countries should be run. This must not be undermined by such poorly framed and unnecessary legislation as this Bill. I urge noble Lords to support these amendments.

Baroness Finlay of Llandaff: My Lords, it is a pleasure to follow the noble Baroness, Lady Bryan, and to add to her remarks. I strongly support  Amendment 49 and point out to the noble Baroness, Lady Noakes, that the phrase in Amendment 19 of consultation implying a view to meeting an agreement is particularly important because in this Bill we are talking about devolved competencies directly, and I am afraid the track record has not been that good. Indeed, the Bill seems to have been announced without any prior consultation with the Welsh Government at all, and officials have been reluctant to share substantive information relating to the Bill which is not in the public domain but does affect devolved competencies.
In paragraph 141 of Schedule 7A to the Government of Wales Act it would seem that legislative consent is required over aspects of health, education, fire and rescue, and certain transport services. But the Welsh Government appear to be set to vote overwhelmingly to refuse legislative consent, and for good reason. As the Government themselves have conceded, the services are
“run differently in England, Scotland and Wales and are the responsibility of Scottish and Welsh Governments respectively.”
With that responsibility comes a requirement to set pay and terms and conditions of service, and those cannot be disentangled from strategic and operational decisions taken in Wales and Scotland. To give those powers to Westminster and override the devolved legislations would effectively undermine their ability to run the services that they run as effectively as they see fit to meet the needs of the population—the population which have voted those devolved Ministers into their positions in government.
There is a different approach to the unions, as has already been said. There is a model of social partnership, which I am familiar with in Wales. It was notable that, even going back to 2015, the junior doctors did not go on strike in Wales whereas they did in England, and the current rail strikes have shown a different pattern of working because an agreement was made with Transport for Wales.
It certainly is not incidental that this has been included in the Bill, because it threatens the Welsh Government’s ability to maintain a model that is interwoven with those responsibilities, as I have said. In fact, those services are essential to the running of the devolved nations. The approach would undermine accountability in Wales, as the Bill provides no role for the Senedd, despite the strong argument that it has the competences to legislate in areas contained in the Bill. The Secretary of State being able to set minimum service levels for local services in most parts of England is already questioned by some, but it seems almost an affront to devolved responsibilities to say that that could override the responsibilities in the devolved nations.
The consultation process set out in the Bill fails to specify who should be consulted; it is whoever the Secretary of State sees fit, and they do not seem to have to pay regard to the outcome of that consultation. That means there is no role for the Welsh Ministers, who are actually responsible for running the services. If the Bill is passed, the backdrop to negotiations undertaken in Wales will be fundamentally altered. There is a concern—a valid one, I think—that that could be used for political ends, because there is no protection in the Bill from a Secretary of State who wishes to provoke or prolong a dispute for political ends.
Sadly, no Minister in Wales or Scotland can take comfort from assurances given and being told that they will be consulted. Similar assurances were provided over the financial powers in the internal markets Act, but those are now being used to ensure that Welsh Ministers cannot take the decisions over EU successor funds provided in the form of the shared prosperity fund and the levelling-up fund. I hope the Committee will see that in order to maintain the integrity of the UK, it will be important to take Wales, Scotland and, I think, Northern Ireland out of the wording in the Bill.

Baroness Noakes: Has the noble Baroness realised that the Bill does not actually require any employer in Wales to issue a work notice? The only thing that the Secretary of State will be doing is setting minimum service standards. The implementation via work notices is entirely at the option of the employers, which will be either the Welsh Government or one of the various Welsh bodies that are answerable to the Welsh Government. I understand the point that she was trying to make, but she was implying that the UK Government were interfering in the operation of the services, which the Bill does not come close to doing.

Baroness Finlay of Llandaff: I remind the noble Baroness that we have already had a debate over the difficulty of setting minimum service levels and the dangers thereof. Minimum levels for nursing have already been set in Wales, for example, so we cannot disentangle the one from the other. That is the point that I was trying to make.

Baroness Donaghy: Yes—“Come into my parlour”.
I attended the Wales TUC and the Scottish TUC for well over a decade—some might say I do not have a home to go to. That helped me to understand the completely different cultures of those countries and the completely different relationship that the workforce, the trade unions, employers, Governments and successive Administrations had with each other, and the respect that successive Governments had with the trade unions. It is not just that this is a damaging Bill; it is an affront to those countries that there should be some imposition of power. That is what we are talking about, not whether employers should be forced to issue a work notice but that there will be an overall power, the details of which are not known, which the Welsh and Scottish Administrations will have to accept.
We are talking here about the tone of employment relations, which has always been completely different. It has been conducted in a non-legalistic way. There have been as many strikes, and I am not saying that the services are particularly better in Wales or Scotland, but the tone of the relationship is what could be so badly damaged.
It was most interesting at Question Time today for those noble Lords who were here to hear the noble Baroness, Lady Vere, talking about the distinction between the workforce and the trade unions. I have been trying to make the point all along that this Government are doing their best to separate trade unions from their workforce. The noble Baroness was very keen to assure the House that she was not blaming  the workforce for people not doing non-contractual rest-day work; she was blaming the trade unions for those members not doing non-contractual rest-day work. That in any case is a bad practice that has grown up over the years, which has really been because members have wanted a better standard of living, but are we really saying that a minimum service level will have to include this non-contractual rest-day working, or will it not include it? Or will it not be mentioned at all in any document?
The Minister is shaking his head and smiling. I realise that he must be getting very fed up of listening to all of this. Maybe that will help the Government next time to bring forward a Bill that actually has some content in, and then he will not be so bored.
I do not know how many people here watched “Boys from the Blackstuff”—some Members are certainly too young for that—but I am reminded of the character called Yosser Hughes, who went around saying “Gis a job”. In this case it is the Government saying, “Gis a power. We don’t know what we’re going to do with it, we can’t tell you yet, we promise to consult you, but gis a power.” I think the Government are hoping that, if they carry on repeating that for long enough, everyone will sit back and say, “Oh all right, let’s see what they do with it”. As far as I am concerned, that is the main principle: the Government are asking us to give them a power and not telling us how they will use it.

Lord Balfe: My Lords, there is a feeling growing up or being put around this House that somehow the Conservative Benches are historically against trade unions. These Benches are not historically against them. I spent 25 years in the European Parliament, and my noble friend the Minister spent some years there. I spent some time on the European Economic and Social Committee, which, as with Scotland and Wales, bases itself on trying to get a consensual view of industrial relations. If you want to improve the wealth of the country, that is the way forward. That is what made the German economy as successful as it is today: the works councils and the compulsory consultation. We seem to be in danger of drifting in the opposite direction, but I remind the Minister that the great tradition of Christian democracy in Europe, which has a much wider following than conservatism, is based on working between social partners.
This legislation is, let us say, imperfect. It has great difficulties and is almost unworkable, and I do not know why the Government are pursuing it. I hope that maybe at the end of this series of debates they will decide to pause it and not go forward. As these amendments show, it is going to be very difficult to implement, even if the Government wanted to. Set aside the local mayors, which I think are impractical; railway trains run between our countries and planes fly between them, while I am told that some services, such as organs and blood in the health service, are organised on a national basis so that people can get the best service wherever they live. We are after all in a United Kingdom, as this party often says.
I ask the Minister to look at hitting the pause button on this piece of legislation because even if it is passed it will not work, and it is not good government to pass legislation that just will not work.

Baroness Finlay of Llandaff: My Lords, may I ask the Minister, when he comes to sum up, if he could clarify for the Committee why he was shaking his head so strongly over his experience in the European Parliament? I think it would be quite helpful to clarify that, given the remarks of the noble Lord, Lord Balfe.

Lord Collins of Highbury: My Lords, this has been an incredibly valuable discussion. The noble and learned Lord, Lord Thomas, is absolutely right. One of the problems we have is that, in the past, good governance was Green Papers, White Papers, a debate about policy and then a considered approach to what sort of legislation would be appropriate. The other thing we are jumping around between is the question: is this about minimum service levels, or is it a power grab by the Government?
The reality is that we have minimum service levels, but they are negotiated locally, taking in many factors. As the noble and learned Lord said, we are talking about devolved matters. It is the responsibility of the Welsh and Scottish Governments to set up and organise their health, education and other services. It is not just about the devolution settlement. I have heard Government Ministers, on the levelling-up agenda, talk about how we want to push responsibility locally. But suddenly that sort of politics goes out of the window when it comes to trade unions. I heard what the noble Lord, Lord Balfe, said about his party, but the simple fact is that this is a power grab by Ministers.
We will no doubt hear the Minister respond that work notices are a matter for employers, and no one is forcing people. Let me ask the question: if the Minister is going to set the minimum service levels but a local authority, a devolved mayor or the Welsh Government do not force through work notices, will that leave those authorities that fail to implement it in the way the Government suggest open to legal action? Will they face a challenge from those who claim they were denied services? We need a very clear answer to that question. The Bill was published without any consultation of the people who will have the responsibility to deal with it and implement it. Even the consultations taking place now are using language that I find difficult to understand, in terms of the responsibilities of devolved authorities and local mayors.
I am trying to avoid being repetitive—I know that will get the Minister’s head nodding—but fundamentally we will keep coming back to certain principles. Let us just focus on these amendments and have some clear answers to questions. If it is down to the devolved Administrations and local mayors to determine something, does it leave them vulnerable to legal challenge?

Lord Fox: The noble Lord might like to note that, as we were sitting, we received an email from the noble Lord, Lord Markham, which partially responds to his question. It would be rather helpful if we could have letters from Ministers with some notice, rather than simultaneous to our arrival in this Committee. It reinforces the uncertainty around legal redress, the point which the noble Lord, Lord Collins, just made.

Lord Collins of Highbury: I appreciate the noble Lord drawing that to my attention. I have not had the opportunity to read the email, so maybe I will be jumping back up when the Minister responds and I have been able to read it.

Baroness Bloomfield of Hinton Waldrist: My Lords, I thank the noble Lord, Lord Fox, and the noble Baroness, Lady Randerson, for their amendments. Amendments 14, 19 and 49 relate to devolved matters, either via devolved Governments or local government. Amendment 14 seeks to require the consent of elected mayors before minimum service levels could be set in an area for which an elected mayor is responsible. The noble Baroness, Lady Noakes, is right to point out that this is unworkable. Consultations have been published on minimum service levels for ambulance, fire and rail services, and we welcome the engagement of elected mayors on those consultations. Similarly, Amendment 19 seeks to require consultation with Scottish and Welsh Ministers before minimum service level regulations are made in Scotland or Wales, with a view to reaching an agreement. Amendment 49 seeks to limit the territorial extent of the Bill to England.
The noble Baroness, Lady Randerson, raised concerns about the impact of this legislation on devolution, and this is an important issue. However, employment rights and duties and industrial relations are reserved in Scotland and Wales. That said, I reassure her and the noble and learned Lord, Lord Thomas of Cwmgiedd, that my noble friend the Minister met both the Welsh and Scottish Governments to discuss the Bill.
The Government have a duty to protect the lives and livelihoods of citizens across the United Kingdom. The disproportionate impacts that strikes can have on the public are no less severe on people in Scotland and Wales or on those living in areas with elected mayors. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes.
The Government therefore resist these amendments. However, as I said earlier, nothing in the Bill requires an employer, which might include a devolved Government or an elected mayor, to issue a work notice. That would include the example of Cardiff Airport that the noble Baroness cited.

Lord Thomas of Cwmgiedd: On that point, which is repeatedly coming up, would the noble Baroness be able to assure the Committee that we can have a clause in the Bill—because courts sometimes interpret “may” as meaning “shall”—that makes it very clear that no legal obligation whatever rests on any person whatever to implement the minimum standards set out in the Bill, unless the employer decides to implement a notice? If the case the Government are making is that the Bill has no effect unless the employer does something, that needs to be spelled out with crystal clarity. If the Ministers would like, I will have a go at drafting a clause to save the overburdened so-called parliamentary counsel.

Baroness Bloomfield of Hinton Waldrist: I repeat at the Dispatch Box that under the Bill it is a statutory discretion and not a statutory duty for employers as to   whether to issue a work notice. It is a matter for the employer to consider any contractual or other legal obligations it has in taking this decision.
We of course hope that all employers will want to apply minimum service levels where they are needed. In reference to the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, I say that, before making minimum service level regulations, government departments need to consult on the appropriate minimum service for their sectors. This will enable detailed evidence to inform the development of minimum service levels in specific services. This includes understanding the differences between services in each sector across Great Britain and the implications for setting minimum service levels. We will continue to engage with the devolved Governments on the geographical scope of the regulations.
The noble Lord, Lord Collins of Highbury, is correct that of course we would rather have a negotiated agreement on minimum service levels. I also reiterate, in response to the question from the noble Baroness, Lady Finlay, on why my noble friend was shaking his head, that we think there has been a misunderstanding. There is no statutory duty but, as I said, rather a statutory discretion under the Bill for employers to issue work notices.

Baroness Chakrabarti: Does the Minister understand the concern and the problem? “May” can become “must” if someone sues an employer for not having issued work notices, on the basis that the Secretary of State took the view that a minimum service level requirement should be there but the employer chose not to issue work notices but to carry on negotiating, et cetera, and a third party then challenges that discretion and the more gentle decision made under it. That is how “may” can become “must”, and that means litigation, cost and more aggravation. I believe that this is the concern that was expressed by the noble Lord on the Liberal Democrat Front Bench last time and put so eloquently today by the noble and learned Lord.

Baroness Bloomfield of Hinton Waldrist: I hear and understand the noble Baroness’s concerns, but I default to the Government’s position: the Bill gives only a statutory discretion, not a statutory duty, to the employer on whether to issue a work notice.

Lord Fox: I will pursue this “may/must” argument from a slightly different direction. One of the arguments made in the letter of the noble Lord, Lord Markham, is that the unsatisfactory nature of the current situation is that the Government were unable to secure a national agreement from the ambulance services on the level of cover. The Minister will be aware that we do not have a national ambulance service; we have a series of ambulance services across the country. Under the “may/must” doctrine that the Minister set out, it is perfectly possible that one ambulance service in one area “must”, while another one chooses not to; in other words, we would still have a patchy service across the United Kingdom and the Government would have failed to achieve the objective that the noble Lord, Lord Markham, set out in his letter. So, given the good faith that I put in the Minister’s comments, I do not understand what problem  this solves, because the compulsion—or lack of it—within the Bill means that we still do not have a national agreement on service levels.

Baroness Bloomfield of Hinton Waldrist: The Government’s position is that we would rather have a voluntary agreement than a compulsion to issue notices. Of course, we would hope that each employer would choose to accept minimum service levels, because the Government are here to protect the level of service available to all UK citizens, not just those in England.

Lord Fox: The noble Baroness has set up a whole new stream of thought because now she is saying that there is an ability for government to compel the employer to give a notice. We all hope that there will be voluntary agreement—that is where we are now, and it is what the Bill seeks to undermine.

Baroness Bloomfield of Hinton Waldrist: I do not accept the noble Lord’s points at all, but I will continue my answer to the noble Lord, Lord Collins. Of course, we would rather have a negotiated agreement on minimum service levels, but the Government resist these amendments. I hope that I have been able to reassure noble Lords—I feel I have not entirely—on “may” versus “must” and the compulsion, the statutory discretion or the statutory duty. With those comments, I ask the noble Baroness, Lady Randerson, to withdraw her amendment.

Baroness Randerson: I thank the Minister and all who took part in this useful debate. We started with the noble and learned Lord, Lord Thomas, who pinpointed the persistent erosion of devolution. He called the Bill “Henry VIII on stilts”, and the noble Baroness, Lady Donaghy, called it “Gis a power”—I think both phrases will stick in our memories. The noble Baroness, Lady Noakes, said that of course the devolved Administrations will be consulted, but the problem is that, persistently, they have not been consulted at the right levels and the right point in time. There has been a thin façade of last-minute, low-level consultation, and this has not worked—it is not consultation in the proper sense of that word. The Minister did not reassure me when she said that it was complete nonsense that elected mayors should need to give consent—that shows a lack of understanding of the concept of proper consultation.
The noble Baroness, Lady Bryan, gave us a useful long list of recent Bills that have undermined devolution—I will copy it out when I read Hansard so that I remember each one. The noble Baroness, Lady Finlay, took the points further by raising the fear that UK Ministers would use powers in the Bill for political ends. The truth is that this is a heavily political issue and, in England, the wrong sort of political interference has created problems in industrial relations that have not existed in Scotland and Wales to the same extent, because industrial relations have been handled with more sensitivity there. I have no doubt that the UK Government have their own reasons for wishing to sharpen relations with the unions, but that is nevertheless a political issue.
I will refer specifically to the challenge of the noble Baroness, Lady Noakes, to the noble Baroness, Lady Finlay, about the Secretary of State setting an MSL for the NHS in Wales, for example. That MSL could be at variance with that already set in Wales—that is a problem in itself—but what happens when Welsh NHS leaders choose not to implement that MSL? The noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Collins, both confirmed that, in their view, this would be fertile territory for lawyers—let us put it that way. The noble Lord, Lord Balfe, pointed out that this is a totally impracticable Bill and, even if it were passed, it would not work—I agree with him totally.
I thank the Minister for her comments. She said she hoped that employers will want to apply MSLs, so the Government are clearly encouraging that—we are not on neutral territory. But that seems at variance with the idea that the Government want voluntary agreements, as she said next. As my noble friend said, we have voluntary agreements now, and that is what is being disapplied by the Bill. I am not reassured by the Government’s answer, and this is yet more evidence, if we needed it, that the Government are out of their depth on the Bill and do not know how it will or could be applied.
Finally, I will of course be withdrawing my noble friend Lord Fox’s amendment, but, in light of the lengthy letter from the noble Lord, Lord Markham, that we received after these proceedings started—as far as I can manage to read it on my phone, it seems to be at variance with some of the Minister’s points—I will quite possibly come back to these points on Report. When Ministers cannot agree on the interpretation of a Bill, we need to probe further. I withdraw Amendment 14.
Amendment 14 withdrawn.

Amendment 15

Lord Allan of Hallam: Moved by Lord Allan of Hallam
15: The Schedule, page 3, line 31, at end insert—“(5) Before making regulations under this section the Secretary of State must lay before each House of Parliament a statement outlining how the regulations are both necessary and proportionate.”Member’s explanatory statementThis amendment would require the Secretary of State to outline why regulations made under this section are necessary and proportionate before making them.

Lord Allan of Hallam: My Lords, throughout the passage of the Bill, the Government have repeatedly said that we are talking about last-resort measures that they are reluctant to, and hope they will not have to, introduce. In this group, we will test the extent to which they genuinely see these as last-resort measures.
Collectively, the amendments could be described as seeking to introduce additional elements of friction, before the Government move to regulating for these minimum service levels. Friction can be a useful thing in the right places: if I wish to enter my own house, I would like that to be as frictionless as possible, but if the police would like to enter it to carry out a search,  I would like there to be a reasonable level of friction, with them having to prove why they have the ability or need to do that, and to go before a court to have their need tested in front of others. So, here, we are trying to put those kinds of friction in place so that Ministers do not do what we fear: rush to regulate in the heat of action in the same way that they have rushed to bring this legislation before us in the first place.
Amendment 15 in my name uses two concepts that are familiar to those who work with human rights legislation—the notions of necessity and proportionality. I am not practised in public human rights law, so I will defer to the noble Broness, Lady Chakrabarti, who I am sure will have things to say on this group of amendments. However, I have had to make decisions on freedom of expression and surveillance questions on online platforms where these tests are useful and applied because they seek to balance different rights that we have. It has been generally accepted in our debates that we are talking about fundamental human rights here—the right of an individual to withdraw their labour. When considering whether the Government in the public interest can override that right, these necessity and proportionality tests are the right ones, just as they are in other contexts such as freedom of expression and surveillance.
I am sure that the Government in their response will refer to the human rights certification that is on the front page of every piece of legislation and say that it is an implicit commitment. Of course, no British Government could ever not apply tests of necessity and proportionality because they have signed off the legislation as compliant. However, there are significant advantages to making these tests explicit in this section of the Bill.
The amendment would force the Minister to consider the tests and to apply them explicitly before making regulations, and to publish their deliberations for scrutiny. In practice, this would mean that the Minister would have to ask the team that is putting together the case for the regulations to show its workings; this would have significant value if those workings were available to all of us. That is not least of defensive value for the Government, because at some point they will have to explain why they felt compelled to make the regulations and why they passed the threshold.
I look first at the necessity test. The Minister would need to be satisfied that all other avenues had been tried, which in this case largely means negotiated agreements to provide cover. The risk with the Bill as it stands is that Ministers will be satisfied with vague assurances. They will ask, “Did you ask for voluntary cover?” “Yes, Minister, we did.” “Did they agree?” “No, Minister, they didn’t.” “Okay, let’s move to a regulation.” The test may be no more than that and, indeed, in the letter that has just arrived from the noble Lord, Lord Markham, which we are now considering, one senses an element of that with the Government’s argument around ambulance services: “We asked; we didn’t get one and we therefore now need this piece of legislation.” That is not good enough and, if this is truly a last resort power, we want the Minister to press for all avenues to have been explored including the potential offer of carrots to the workforce  for agreeing to provide minimum services, as has happened in many other countries. We debated that at length on the first day of Committee. It is not simply a question of employers ordering their workforces to provide minimum service levels; in many institutions there is a negotiated agreement whereby something is offered to the workforce in return for providing minimum service levels. What we do not want is a necessity test that bypasses and ignores that option altogether. By putting that explicitly in the Bill, the Minister would have to be satisfied that all reasonable steps had been taken and there was no other way in which to guarantee minimum service levels. That is the right necessity test when one is overriding somebody’s fundamental rights, as we have all agreed is happening in this case.
I turn now to the proportionality test. It is included to make sure the provision is done properly. There is a risk of a superficial version of this test—one which is effectively a cost-benefit analysis. We have seen this again in the context of the ambulance debate. The Government will argue that the benefits of having life-saving ambulance cover outweigh the cost of some workers not being able to strike. At that superficial level that sounds reasonable, but it is not a true proportionality test. To do that properly we need to dig into the next level, where we look at the likely actual impacts. There are two areas where the proportionality test might be more complex. First, if there is any likelihood that workers could end up being dismissed—as we have accepted is a potential outcome of this legislation—in this case the costs are dramatically different and that equation would change. Providing emergency cover versus dismissal of workers is a different test from emergency cover versus simply losing the right to strike.
Secondly, if the regulations did not result in more people showing up for work—for example, because people take other forms of industrial action, which they are entitled to do; there are all sorts for ways in which the climate could be poisoned to such an extent that one ends up with fewer people at work than one would have done absent the regulation—the benefits would not have been realised and the proportionality, the cost-benefit equation, changes. This amendment therefore proposes the kind of proportionality test that I hope the Minister would apply by rigorously looking at all the costs and benefits, and is then prepared to publish and defend that analysis rather than making simplistic assumptions. The amendment simply seeks to introduce that rigour with publication to make sure that it happens.
Other amendments in the group will add other forms of beneficial friction and I will leave it to their proponents to argue for them, but I hope that I have made a reasonable case for the Government to accept the additional clarity offered by Amendment 15. I beg to move.

Baroness Chakrabarti: I speak in support of every amendment in this group, even at the risk of offending the noble Baroness, Lady Noakes. At first blush, her Amendment 17 enhances my noble friends’ amendment and does no mischief to it whatever because. by including the impact of the legislation on service users in the list of other groups of people affected, she  has, perhaps inadvertently, introduced an element of proportionality into the assessment of the legislation. I completely agree with the noble Lord, Lord Allan of Hallam. I perhaps would not have chosen his friction metaphor because it is the legislation itself that is introducing friction into what ought to be partnership industrial relations. This group may not be Henry VIII on stilts, but it is Henry VIII revisited. What every amendment in the group at least purports to do is to introduce an element of transparency into the process before the Secretary of State inflicts these regulations on the public or on Parliament.
I want to be clear, as I have been in the past, that the Bill is not desirable or necessary but if such minimum service level agreements were in a particular instance desirable, necessary and proportionate to comply with convention rights, as the noble Lord, Lord Allan, rightly pointed out, it would be for a number of reasons better for everyone—including Ministers—to do this by way of purpose-specific primary legislation. In a moment where it was truly necessary to impose these agreements because they could not be reasonably negotiated, it would be better for legal advocacy to do this by way of purpose-specific primary legislation. Why? Because it would be purpose-specific and because any court subsequently considering the necessity, proportionality and compliance with the law of the measure would give greater deference to the scrutiny and process undertaken in both Houses of Parliament in the context of a Bill rather than regulations.
Finally, under our human rights settlement in this country, at least at the moment, primary legislation may never be struck down by the courts. Even if the Bill was not necessary and proportionate in the instances that I identified, when it becomes an Act of Parliament it cannot be struck down. If the Government are really to be believed that these measures are only in extremis, are not political tub-thumping, are not about trying to divide the unions from the workers, and so on—and that the Bill is about ensuring a level of service when it cannot be reasonably negotiated—Ministers would be very wise to take the rather sage advice of the noble Lord, Lord Balfe, and pause this legislation, having opened up the argument, in order to save the possibility of purpose-specific and sector-specific primary legislation down the road in the event that, in one sector, there was such a problem and people were behaving so unreasonably that a service could not be guaranteed in a way that was reasonable. We heard different arguments from Ministers in the previous debates about what the test should be: whether it should be life and limb or, perhaps, based on annoyance; in the context of the Public Order Bill, it is about “more than minor” disruption.
Assuming that the Government will not agree with me and will not pause this legislation, at least today, the second-best option is greatly to beef up the process of parliamentary scrutiny and public transparency before such a draconian measure as a minimum service level agreement is imposed by government. I certainly cannot imagine that Ministers can object to a turbo-charged scrutiny procedure for matters that I really do not think should be dealt with by secondary legislation  at all, for the reasons I previously gave. What is the possible objection from any Minister to, for example, Amendment 15 in the name of the noble Lord, Lord Allan of Hallam, which proposes a statement setting out why the regulations are “both necessary and proportionate”?
What possible objection could there be, not least given that the Minister, the noble Lord, Lord Callanan, has set out his statement on the cover of the Bill that he thinks it complies with the convention rights? If he is thus convinced, surely, he would have no objection to any specific regulations made thereunder setting out reasons, in a statement before both Houses, why the regulations are necessary and proportionate. That is the convention test in terms of the European convention; there are other conventions to which we will come in later groups of amendments. I am really interested in the Minister’s response to why something as innocent and desirable as Amendment 15 should not be welcomed with open arms.
Similarly, a bit a more granular detail about impact is provided in Amendment 16, which is enhanced by Amendment 17, thanks to the noble Baroness, Lady Noakes. Various other process amendments in this group are also designed to give Parliament greater access to ministerial reasoning before being faced with the “yes or no” choice that secondary legislation puts before both Houses. That is one of the fundamental objections to doing very grave things by way of secondary legislation: we are always told, “Well, Parliament can always disagree”, but Parliament cannot amend or refine; it has to say yes or no to the Government of the day. That is particularly difficult for Back-Benchers of the governing party, whichever party is in power.
If Ministers will not listen to the noble Lord, Lord Balfe, who is very experienced in this area—by the way, I agree with his assessment that, historically, Conservative leaders and Ministers have not always been so anti-trade union; I will not bore noble Lords again with references to Disraeli and Churchill, but they are all over the history books, so it is a shame that the Government are going down this path—and if the Government insist on the Bill and will not pause it, surely they should welcome pretty much every amendment in this group, or some version of them.

Lord Balfe: I say to the noble Baroness that, early in my career, I asked a senior trade unionist who had been the best Minister of Labour, and he said Walter Monckton followed by Iain Macleod.

Baroness Chakrabarti: That is even more wisdom from the noble Lord, Lord Balfe.
That concludes what I wanted to say about this group of amendments, and I look forward to hearing later, I hope, a word of consensus from the Minister in response.

Baroness Noakes: My Lords, I think that the noble Baroness, Lady Chakrabarti, has tried to damn my amendment with faint praise, so I had better explain it and my approach to this group of amendments.
First, I remind the Committee that this is not draconian legislation, as the noble Baroness has just suggested. It does not impose minimum service levels; it merely allows the Government to specify minimum service levels, which can then be imposed via work notices if employers so choose. That is all this legislation is doing.
This group of amendments, in various ways, is trying to make the process of establishing regulations specifying minimum service levels more difficult, and to make them harder to get through Parliament by putting more hurdles in their way. The Bill already requires consultation; indeed, consultations have already been published for three instances of minimum service levels, and that process will run its course. The departments will then produce their minimum service levels and the appropriate statutory instruments, which will be accompanied by impact assessments. All of this is perfectly ordinary practice; it does not need any of the amendments in this group.
I tabled Amendment 17 simply because the noble Lord, Lord Collins, asked in his Amendment 16 for an assessment of the impact on
“workforce numbers … individual workers … employers … trade unions … and … equalities.”
Just for the sake of balance, I wanted to remind the Committee that there is the other side: people who are affected by strike action and who want to receive services. The point of my amendment is to say: I do not support the amendment tabled by the noble Lord, Lord Collins, but if you are going require something such as this, it should not give just a one-sided picture; it should be balanced. To that extent, I am grateful for the comments from the noble Baroness, Lady Chakrabarti.

Baroness Chakrabarti: I am grateful for that gracious response from the noble Baroness. Whatever her motivation, I agree that service users should be included in that list, not least for the reasons set out earlier by the noble Lord, Lord Allan of Hallam.

Lord Collins of Highbury: One thing that the noble Baroness could read is the original impact assessment for the transport Bill, which said—and I will come back to this point—that there will be an impact on service users because disputes will be longer and industrial relations will be worse. The problem we have had is that that Bill and this Bill had impact assessments there were red-rated. The noble Baroness should focus on that.

Baroness Chakrabarti: Indeed. The point is that the noble Baroness opposite and I disagree, perhaps, about what the effect will be on service users and others, but the test is necessity and proportionality, as was set out so well earlier by the noble Lord, Lord Allan of Hallam. Whatever the motivations, it is a good addition to the list, in my view.
As for the noble Baroness’s point that this is will all be voluntary and the legislation will not impose anything on anyone, that really does not hold as a matter of law—not least because, as we discussed earlier, the “may/must” point is really significant; it is not hypothetical. It is hugely significant that, when one is a given a power—whether the Secretary of State is given a  power to make regulations or an employer is given a power to issue work notices—they must exercise that power rationally. They cannot ignore that they have that power; they will face litigation. That is compounded in this area because the employers may well be contracted by the Secretary of State. The Secretary of State would then have the purchasing power—the significant contractual power as the buyer of the service at one end—and would also wield regulations with the other hand. It is not completely ingenuous to suggest that this is all just helping the discussion and that there is no element of compulsion in it.

Lord Hendy: My Lords, much of the debate on this Bill has been concerned with its substantive content, but my noble friend Lady Chakrabarti draws attention to a major problem with the Bill; namely, its form.
I remind noble Lords that last year two committees of this House reiterated long-standing principles for drafting legislation. The Delegated Powers and Regulatory Reform Committee, of which I have the honour to be a member, in its report Democracy Denied?, and the Secondary Legislation Scrutiny Committee, in its report Government by Diktat, set out those principles, which were overwhelmingly endorsed in the debate in the House on 6 January last year. The fact is that this Bill flouts those principles. That view is reiterated by the reports on the Bill by the Delegated Powers Committee, the Joint Committee on Human Rights and the Constitution Committee. In addition, as my noble friend Lord Collins has just pointed out, the Regulatory Policy Committee has described the Bill’s impact assessment as “not fit for purpose”. This raises the question of what steps this House could take to ensure that Bills comply with the principles that are essential for parliamentary democracy in this country.
I turn to my Amendment 36A in this group, which is my attempt to give some substance to—or to redress—the omission pointed out by the Delegated Powers Committee in its report on the Bill. I will read two short paragraphs from our report. Paragraph 19 says:
“The Government have chosen to put no detail in the Bill in relation to minimum service levels, leaving the matter entirely to regulations. Important matters of detail should be included on the face of the Bill, perhaps with a power to supplement those matters in regulations.”
That is my noble friend Lady Chakrabarti’s point. The conclusion, which the committee reached at paragraph 23, is:
“Given the absence of an exhaustive or non-exhaustive list in the Bill of the matters that can be included in regulations, the unconvincing reasons for this power in the Memorandum, and the absence of indicative draft regulations illustrating how the power might be exercised, the House may wish to press the Minister to provide an explanation of how the power to set minimum service levels in new section 234B(1) of the 1992 Act is likely to be exercised. In the absence of a satisfactory explanation, we regard the power as inappropriate.”
My noble friend Lady Chakrabarti says that we can make it good by passing primary legislation. I wonder whether the Government will consider the possibility—even at this stage—of introducing amendments to put those omissions into the Bill to give it at least some semblance of meeting the format and principles for the drafting of legislation.

Lord Fox: My Lords, we should be indebted to my noble friend Lord Allan for introducing the concept of necessity and proportionality. It is a shame because, in an ideal world, the Minister would have stood up at Second Reading and set out at the outset the necessity and proportionality of the Bill. That did not happen, with due respect to the Minister, so we are having to have that debate now in Committee.
We heard from the noble Baroness, Lady Bloomfield, that the Government’s preference is to negotiate, rather than compel these MSLs. I believe that she is sincere when she says that, but we must look at what has been happening with the disputes. We have had several real-world examples going on around us. To take the rail dispute, for example, it is absolutely clear that the Secretary of State, operating behind the scenes, prevented decisions being made that would have shortened that dispute. Had this legislation been in existence, how would the Secretary of State’s hand have been strengthened even further? Would we be any closer to a resolution now? I suggest that we would have been a lot further away.
When it comes to the health disputes, it took months before the Government got around the table with nurses and doctors to negotiate and do what was needed to end those disputes. It is not clear to me that the idea that “We would rather negotiate” is absolutely on the table. We know very well that “We would rather stand back” has actually been the Government’s approach. We have to take the Government on the evidence that we have seen, rather than what we have heard in your Lordships’ House.
I turn to the short, but excellent and pithy, debate that we have been having. With the fear of damning the noble Baroness, Lady Noakes, yet further, I say that she is completely correct to focus us on the users of the services. However, I would say that the impact of days that make up a year of service disruption through strikes, regrettable though these are, is far smaller—thank goodness—than that of the day-to-day service that people experience. Perhaps the noble Baroness could focus her not inconsiderable energies on improving the day-to-day services that her Government are delivering for consumers across this country. That is the real world that most of them experience: the everyday service, not the strike day service. So perhaps she could use her energies in that direction—I am sure that everything would get better if she did.
I will say a few words about Amendment 40 in my name and a little bit about the friction that the Bill is creating within industrial relations or, indeed, in the case of my amendment, with recruitment. It is really a probing amendment to ascertain from the Minister whether he thinks that the Bill will impact the morale of existing workers and, more specifically, the ability to recruit new people. The existence of the Bill, whether or not it is used, will have a communicating effect both on the current and future employees of these services. The Government need to take that into consideration.
In an earlier group, noble Lords talked about the chronic shortage of people in many of the sectors that we are dealing with here—health, education and others.  I realise that job security is not something that many Ministers experience—although the noble Lord, Lord Callanan, is perhaps an exception to that, having been a Minister for many years—but I ask him to empathise on the subject of job security, and indeed task security. As I say, that may not be something that he has experienced widely. We have to remember that the employment market is a seller’s market; there is a shortage of people to go into these services. Therefore, it is absolutely not helpful if the Government make the prospect, or the sense, of working in these services less good and less favourable.
I am not necessarily suggesting that this legislation does that. I am asking the Government what work they have done to assess what effect this legislation would have on employee morale and future recruitment. Can the Minister set out the response and the nature of that work, statistically and qualitatively? If the work has not been done, why not?

Bishop of Manchester: My Lords, I am sorry to come into the debate quite late; I had not realised we were getting so close to the end. I support Amendment 20 from the noble Lord, Lord Collins, and Amendment 40 from the noble Lord, Lord Fox. I regret that I have been unable to be in my seat at earlier stages, but I am grateful that my right reverend friends the Bishops of London and St Edmundsbury and Ipswich have passed on my concerns. Amendments 20 and 40 are absolutely invaluable. If this Bill is—regrettably, in my view—to become law, it must have all necessary consultation and evidence gathering before it.
Amendment 20 would require that an assessment of health and safety performance in the affected sector is made prior to minimum service regulations, and that is critical. As other noble Lords have said, if we look at this past winter, it is valid to ask whether what might be considered a minimum service level is reached on a daily basis even when there is not a strike going on. Assessing the level of service provided in periods when the service is not affected by strike action, and requiring that to cover the most recent 12 months, creates an important benchmark.
Amendment 40 would introduce a necessary review of the impact on recruitment and retention of staff. Research by the TUC suggests that the recruitment and retention crisis is ongoing. Something like two-fifths of public servants say that the implications of this Bill have made them more likely to consider leaving their job in the next three years. We have a crisis of vacancies in many sectors. This is not going to help.
Earlier today the noble Lord, Lord Goddard, asked a pertinent Question about the performance on the west coast rail line, and I was glad to be able to ask a supplementary to that. If nothing else, that exchange should have made clear to every one of us in this House that there is no point in setting minimum service levels for strike days when current performance is so depleted. Such poor provision of services, often exacerbated by the low morale consequent upon poor or aggressive management practices, means that acceptable minimum levels of service are just not available to customers or the public even on normal working days.
There is a duty on all of us who govern our nations to go beyond the most basic economic calculations when we are legislating to do so for the common good and human flourishing—something set out in the teaching of many religious denominations. This Bill, as drafted, fails that duty.

Lord Cashman: My Lords, I rise to speak in favour of the amendments listed. I look to the noble Baroness, Lady Noakes, and assure her that I will not, at this point, offer my support to her amendment; I am sure that will give her great comfort. I will not repeat the points I made at Second Reading, but I believe this Bill undermines basic democratic and fundamental rights. I believe it is dangerous. It is barely drafted and badly drafted. I thank my friend the executive dean of Leeds, Professor Johnson, for the advice he has given me on the Bill.
I equally thank the Equality and Human Rights Commission and will refer to its recommendations now. I hasten to add that the commission, in my opinion, has been much muffled and muted during the last 18 months. Let me quote:
“Having carefully considered the issues, we believe the Bill raises several human rights considerations, specifically in relation to Article 4 (Prohibition of Slavery and Forced Labour), Article 11 (Freedom of Assembly and Association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights (ECHR) that require careful scrutiny.”
I believe that these amendments provide for that.
To pick at random out of the commission’s substantial documents, paragraph 4 says:
“In the human rights memorandum that accompanied the earlier Transport Strikes (Minimum Service Levels) Bill”—
to which my noble friend Lord Collins referred earlier—
“now superseded by this Bill, the case for the lawfulness of similar provisions was made partly by distinguishing the Bill’s transport-focused clauses from measures affecting other sectors, including health and education. In that document, the Government recognised the importance of existing measures to mitigate the impacts of industrial action in health, education and fire and rescue services. For example, some healthcare sector trade unions already provide 
Paragraph 5 says:
“It is not clear what consideration has been given to these existing measures in the current Bill. We advise that more detail may be needed to articulate a legitimate aim for imposing Minimum Service Levels (MSLs) on each sector impacted by the Bill.”
I now turn to paragraph 11, to which I referred at Second Reading:
“Finally, we are concerned that an employee would lose automatic unfair dismissal protection not only if they fail to comply with a work notice, but also if their trade union has failed to take reasonable steps to ensure compliance: an employee will not know before participating in a strike whether that is the case or not.”
I could go on. For those reasons and many more, I urge noble Lords, if not now then when these amendments come back, to give their full support.

Lord Collins of Highbury: My Lords, I also welcome the contribution from the noble Baroness, Lady Noakes. We have worked together, and one of the things I have always been impressed with, particularly on the Finance Committee we served on jointly, is her insistence on decisions being clearly evidence based.  That is what this series of amendments is seeking, because at the moment the only evidence we have is an impact assessment that was judged to be red-rated by the Regulatory Policy Committee—not fit for purpose. It was published after the MPs in the other place had scrutinised and passed the Bill, so they did not even have an opportunity to see the red-rated impact assessment.
The noble Baroness has raised the important point that industrial action affects the economy and all kinds of things, not just people travelling to work. It has a cost, and it has a cost for a purpose. When I studied industrial relations, many economists tried to make me better understand that strikes brought two sides together because they had costs imposed on them. The problem we face now is that some of the costs, particularly in the rail industry, are hidden. A rail employer does not suffer any cost from industrial action because the Government indemnify it for those costs, so there is no imperative on the employer to reach a settlement. I suspect that is why the public realise who is to blame for the length of these disputes. The public are not as easily fooled as the Government think they are.
Importantly, the impact assessment on the transport strikes Bill said it would have a
“negative impact on industrial relations, which could have detrimental impacts for all parties”
and increase the frequency of disputes, meaning that
“an increased number of strikes could ultimately result in more adverse impacts in the long term”,
particularly on users of the service. Many noble Lords will have seen NHS Providers make the very same point in its briefings to this Committee, saying that it will directly impact good industrial relations and the ability to resolve any disagreements and disputes.
That is why this series of amendments is important. I like my noble friend’s point about friction—you want to ensure that there are processes to go through before a Minister uses the powers this Bill gives them. My noble friend Lady Chakrabarti is absolutely right; they also try to increase transparency over why a decision has been made and how a conclusion is reached on what a minimum service level is. As we have heard in previous debates, certainly everyone involved in the health service would be intrigued to know how you set a minimum service level and how it would compare to non-strike days. Similarly, in Oral Questions we had questions about levels of service in transport.
There is a very strong view in the impact assessment on the transport strikes Bill. I was interested to see the questions put in the Select Committee. Transport Focus, the government body, said things we need to hear: “A volunteer is worth 10 pressed men—it is often said, but true, and we would see consequences if this type of MSL were ever put into place, but it seems like unknown territory. We are curtailing the right to strike and making things worse.” The sectors are so broad in this Bill—it is more than transport, as we have debated. The Rail Freight Group said that it was quite happy that it was not in scope, but the Bill is now written in  such a way that it could be. It said, “We are not in scope, and that is a situation we are actually quite happy with, because freight is a private sector operation. Our members do not see a particular role for the state to get involved in industrial relations between employer and employee”. Phil Smart of the Rail Freight Group said: “Our Members feel it is their responsibility to sort out their industrial relations with their own staff. We think that is the responsible thing to do. We think we might end up somewhere we don’t want to go if we see the state as taking a role in determining industrial relations in private companies.”
That is precisely what is wrong with this Bill and its imposition—I use that term because the noble Lord will no doubt repeat comments he has made before, and the noble Baroness the Minister has also said, “It is up to companies: there is no statutory obligation”. But he who pays the piper calls the tune. I am sure we will see Governments use these powers, whether through funding or other forms of coercion. No one will be fooled. I think it is dangerous for the Government; my advice to them is to stay out of industrial relations—it will only end in tears.

Lord Callanan: I thank the noble Lord, Lord Collins, for his helpful advice. I will be sure to pass it on to the Prime Minister.

Lord Collins of Highbury: Ted Heath would have done.

Lord Callanan: He was slightly less successful than the current one.
Each amendment in this group seeks to add additional evidence-gathering or reporting requirements or scrutiny to the regulation-making powers in the Schedule to the Bill. Before addressing them, perhaps the Committee will permit me a moment to reply to the rather general points made by the right reverend Prelate the Bishop of Manchester. I am afraid that I fundamentally disagree with him. Recent strike action has demonstrated the disproportionate impacts strikes can have on the public, presumably including his parishioners. They have been unable to access work and healthcare or attend education classes and are worrying whether an ambulance will be there when they need it. Businesses are also crucially affected by industrial action; 23% of them could not operate fully due to industrial action in the UK in December and 2.4 million strike days were lost between June and December. I am sorry that the right reverend Prelate does not believe his parishioners need protecting from these actions, but this Government certainly do.

Bishop of Manchester: I have every concern for my parishioners and the members of the various parishes, schools and chaplaincies—everyone in my diocese, whether they are Anglican or otherwise. However, I do not believe that this legislation is taking us in the right direction or that passing it will create better ambulance, train or hospital services for the people in my diocese. We may disagree, but I assure the Minister that I speak on behalf of everyone in my diocese.

Lord Callanan: They will also get to vote in democratic elections and make their feelings clear. By the very nature of the legislation, if a strike is taking place with no minimum services, given that this Bill imposes minimum services, his parishioners will get a better level of service once it goes through. However, we should have debated these points at Second Reading. I am sorry that the right reverend Prelate could not be present then.
Amendment 15, tabled by the noble Lord, Lord Allan, seeks to require the Secretary of State to lay a Statement before each House outlining how the regulations that set minimum service levels and specify the relevant services are both necessary and proportionate. As my noble friend Lady Noakes, who has had to go to the Financial Services and Markets Bill in Grand Committee, pointed out, this amendment adds unnecessary duplication. Sufficient checks and balances before the regulations can be made are already built into the legislation. This includes the need to carry out consultations and the requirement that regulations must be approved by both Houses before they can be made.
Key stakeholders, including employers, employees, members of the public—perhaps even churches—trade unions and their members are all encouraged to participate in the consultations and have their say in the setting of these minimum service levels before they come into effect. Parliament, including Select Committees, as they already have done, will have an opportunity to contribute to the consultation. Following the consultation, the Government will consider all representations and publish a response setting out the factors taken into account in determining the minimum service level to be specified in those regulations.
Subsequent regulations on MSL will be accompanied by an Explanatory Memorandum which will outline the legal effect of the regulations, to address the complaints of the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Cashman, and its rationale and why they are necessary. Impact assessments will also be published alongside the regulations, which will then be subject to the affirmative procedure. We think this approach is appropriate; it is a common way for secondary legislation to be made.
Amendment 36, tabled by the noble Lord, Lord Collins of Highbury, and the noble Baroness, Lady O’Grady, also requires the relevant Commons Select Committee to publish a report on how the Act will impact that sector before regulations are made. This will delay the implementation of minimum service levels—I suspect that is its intent—and extend the disproportionate impact that strikes can have on the public.
Amendment 36A, in the name of the noble Lord, Lord Hendy, would require the Government to lay draft regulations before each House of Parliament at least 28 days before the regulations are intended to be made, with an Explanatory Memorandum setting out factors taken into account in determining the MSL. These additional steps are, in our view, unnecessary and duplicative for the reasons that I have set out. The Government resist Amendments 16, 17, 20, 36 and 36A.
Amendments 38 and 39, in the names of the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, would place limitations on the consultation provision, which the Government again resist. In the Government’s view, Amendment 39, as drafted, would not have the effect that noble Lords perhaps intended. In reality, it would require consultations to be published within a six-week window after the Act is passed, meaning that, by their very nature, future consultations after this period would then not be possible. Amendment 38 would prevent consultations taking place at all after the Bill has achieved Royal Assent. Both amendments would remove the ability to specify minimum service levels on an ongoing basis and, in our view, unduly limit our ability to respond appropriately as circumstances change—again, I suspect that this is the purpose of those who tabled the amendments. Key stakeholders are all encouraged to participate in the consultations to help shape the way MSLs operate. As I have made clear in previous responses, the Government have already published consultations on implementing minimum service levels in ambulance, fire and rescue, and rail services.
Amendment 40, in the name of the noble Lord, Lord Fox, would require the Secretary of State to lay a copy of a report in both Houses of Parliament, no later than six months after the Act is passed, setting out the findings of a review into the impact of the Act in regard to six key sectors. The noble Lord will be unsurprised to hear that I resist this amendment on the grounds that all the potential impacts of minimum service levels, including those on staffing, etc cetera, and the other factors the noble Lord mentions, will be considered as part of the process of making detailed regulations for those specified services. As I have set out on numerous occasions, these regulations will be accompanied by detailed impact assessments. We have also committed to conducting the usual review of the full impact of the Act within five years of the first secondary legislation coming into force. We believe that is a much more appropriate timescale to review the impacts.
I apologise to the Committee if I have spoken at length but there were a lot of amendments in this group. I hope I have been able to provide at least some reassurance on the consultation processes that we intend to undergo prior to making regulations, as is required by the Bill.
I was going to say that I hope noble Lords will feel able not to press their amendments, but I see that some noble Lords are seeking to intervene.

Baroness Chakrabarti: I want to ask a question of the Minister, just to be clear in my own mind. The trade unions say that the Government do not need these powers to enforce minimum service level agreements because they are reasonable and negotiate voluntarily and will continue to do so—they say it is not necessary to legislate. The Government disagree with that and legislate. Then, when some of us say that there needs to be a transparent process and proper consultation because this is such grave legislation for trade union rights, the Minister responds by saying, “No, no—we do it anyway, so we don’t need to put that on the face of the Bill”. Is there not a contradiction at the heart of  this argument? The Government will legislate only one way: for powers for the Secretary of State but never for scrutiny of the Secretary of State. How is that consistent with what the Government say to unions, who are saying do not legislate for this because reasonable agreements will be negotiated in any event?

Lord Callanan: On a number of occasions, including the first day of Committee, I have made it clear that if voluntary arrangements are in place, which there are in some services, that is our preferred approach. However, it is the case in certain ambulance services that those voluntary arrangements were not agreed until literally the night before the strike action was due to take place, and indeed some trade unions then changed their minds about voluntary arrangements. We therefore think it is appropriate to have the back-up power. If they can be agreed, that is our preferred approach. The approach outlined by the noble Baroness is the normal process of consultation. If Parliament chooses to give the Government these powers—we will see the outcome of the debates in both Houses—then we will consider whether it is appropriate to make these regulations or not, given the circumstances in each case. Those regulations will then be further approved by Parliament.

Lord Fox: I have two points. In answering the noble Baroness, Lady Chakrabarti, the Minister used the ambulance service as an example of the Government having to use the power. I understood that it was the employer that used the power, and in the case of ambulance workers the Government are not the employer. Can the Minister perhaps square that language?
In a rather less difficult answer, in dismissing one of the amendments tabled by the noble Lord, Lord Collins, the Minister said that the process of publishing information at parliamentary level would take too much time. It is on the record that a recent former Transport Secretary of State said that the Bill will not solve the current problems. What is the Government’s time target for this, given we know that the Minister thinks one of the amendments would take too much time? What is sufficient time? When do the Government expect the Bill to be in place, all other things being equal, and what is the hurry?

Lord Callanan: On the noble Lord’s first question, as he well knows, it is the Government’s job—or duty, if we get the legislation through—to make the regulations, and then it will be at the discretion of employers whether they use the powers that are given to issue work notices. We have debated this many times.
With regard to the timetable, these things are beyond my authority level. It depends how quickly the Bill goes through Parliament, how many amendments there are, how long ping-pong takes, and the scheduling of the legislation by the usual channels. I hope we will get the legislation through as quickly as possible. Of course, I hope that we never need to use it, as I have said before, but we think it is appropriate that the power should be there as a backstop.

Lord Hendy: My Lords, I am sorry to trouble the noble Lord a moment further, but could I invite him to express a view on the report of the Delegated Powers Committee? It points out that there is no detail in the Bill and criticises it for that. Does the noble Lord accept that criticism?

Lord Callanan: We will be responding in due course to the report from the Delegated Powers Committee. I entirely accept that this is a wide secondary-legislation-making power for the Government, but we think that it is appropriate in these circumstances.
With that, I urge noble Lords not to press their amendments.

Lord Allan of Hallam: My Lords, I am sorry the Minister did not feel comfortable accepting the amendments in this group, but I think it has been a helpful debate.
The noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Collins, both talked about the potential for inserting friction into industrial relations. These Benches very much agree that that may be the effect of these regulations, so we think it is right to insert a certain level of friction into the legislative process to try to head off what may be a very poor outcome.
The noble Baroness, Lady Noakes, who I understand is now in Grand Committee, talked about the measures as being “not draconian”, which is an interesting framing. However, the fact is that they impact on people’s fundamental rights. Whether it impacts one person, a thousand people or a hundred thousand people, the general principle is that one should be much more careful with any legislation that affects fundamental rights. My amendment was trying to make sure that we had a framework which reflected that.
There is an old maxim that if you only have a hammer, everything looks like a nail. In this Bill, the Government are granting themselves the power to create a hammer which will be offered to employers, but employers may prefer to meet their staff with other tools, such as cash or commitments to a negotiated settlement. In this debate, concerns have come out once more about what happens when the only tool you offer employers is the hammer and the potential knock-on effects of that.
It is right that we are testing whether the Government really will use those powers only in extremis, because “can’t” is often used when “won’t” is closer to the truth, until “won’t” becomes “will” and “can’t” is miraculously turned into “can”—as we have just seen with the recent move to settle the health disputes. That is another example of the Government saying that something is impossible—like minimum service levels are impossible—and then it becomes possible. I hope the Government will strengthen the Bill before Report to make sure that “can’t” really means “can’t” when it comes to negotiated minimum service levels. With that hope, and not yet entirely jaded by experience, I beg leave to withdraw my amendment.
Amendment 15 withdrawn.
Amendment 16 not moved.

Lord Faulkner of Worcester: I am unable to call Amendment 17, as it is an amendment to Amendment 16.
Amendment 18 not moved.
House resumed. Committee to begin again not before 2.25 pm.

Food Price Inflation
 - Commons Urgent Question

Lord Benyon: My Lords, I will now repeat in the form of a Statement an Answer to an Urgent Question in the other place:
“We recognise that food prices have gone up. The recent increase in food price inflation was driven by upward price movements in eight of the 11 food categories. The three most significant price increases since February 2022 are oils and fats, at 32.1%; milk, cheese and eggs, at 30.8%; and non-classified food products, at 28.9%. While recent unseasonable weather in Morocco has also created some temporary supply disruption to fruit and vegetables, domestic retailers have held prices comparatively low compared with the rest of Europe, where increased demand led in some cases to 300% rises in the price of some vegetables.
A number of media outlets have reported that the recent shortage of some salad and vegetables has been the driver of the increase in food inflation in February, but that is not the case. The overall inflation rate increases have been caused by several factors. There are other categories where price increases have been greater than that of vegetables over the past year.
These high overall inflation rates are driven by high utility prices and pressures on global supply chains that are being felt across Europe and beyond. Commentators expect the rate of inflation both across the economy and for food and drink to be near its peak. The Government have put in place a number of measures to support households with prices, including committing £37 billion to support households with the cost of living; £1 billion of that has already gone towards help with the cost of household essentials.
Looking forward to April, the Government will be uprating benefit rates and state pensions by 10.1%. The benefit cap levels will also be increasing by the same amount in order to increase the number of households that can benefit from those uprating decisions. In addition, for 2023-24, households on eligible means-tested benefits will get up to £900 in cost of living payments. That will be split into three payments of around £300 each across the 2023-24 financial year. A separate £300 payment will be made to pensioner households on top of their winter fuel payments, and individuals in receipt of eligible disability benefits will receive a £150 payment.
Free school meal eligibility is being permanently extended to children from all families with no recourse to public funds. The Government have extended free  school meals to more groups of children than any other Government over the past half a century. We remain committed to ensuring that the most disadvantaged children continue to be supported.
We are also working closely with retailers to explore the range of measures they can take to ensure the availability of affordable food, so while we recognise that this is a challenging time for consumers, we are taking a large number of steps to support people with the cost of living and I have great faith in the food supply chain, which has proven itself to be extremely resilient over the past few years.”

Baroness Hayman of Ullock: My Lords, I am grateful to the Minister for reading out the response from Farming Minister Mark Spencer, even if it does not fully reflect the struggles being faced by households across the country. Earlier this afternoon, the Bank of England raised interest rates for an 11th consecutive time, which of course will increase mortgage, credit and other costs at a time when many people are already scaling back on their food shops.
We understand that the Secretary of State cannot always be available to take a UQ, but her absence this morning was concerning. She is the department’s representative at the Cabinet table, and I think many people across the country would expect her to take an active interest in issues around food costs and security. Can the Minister therefore outline her involvement in this issue? What meetings has she had recently with producers and retailers, or have those meetings also been delegated to others?

Lord Benyon: I can assure the noble Baroness that the Secretary of State is deeply involved in this issue. The Food Minister, Mark Spencer, took this Urgent Question, which is right, as he is the Minister responsible for food supply, food security and other related issues. The noble Baroness is absolutely right that this matter affects a number of different departments right across government, and the Prime Minister and the Chancellor of the Exchequer have also been deeply involved in this. I do not know precisely what meetings the Secretary of State has had on this issue, but I will be happy to write to the noble Baroness with details of discussions she has had. I can certainly say from my own experience that the Secretary of State is very involved in this issue.

Baroness Bakewell of Hardington Mandeville: My Lords, I thank the noble Lord for repeating the Statement. Some £37 billion has gone to support households with the cost of living but there is no detail as to eligibility. Can the Minister say how this money is being distributed? I welcome the Government’s intention to permanently extend free school meals eligibility to children from all families with no recourse to public funds. Can the Minister say whether this means that free school meals will be available to all those who are eligible during the school holidays? As the Statement says, the price of milk, cheese and eggs has risen by 30.8%. Can the Minister say whether any of the £37 billion support is reaching the farmers who produce our milk, cheese and eggs?

Lord Benyon: I thank the noble Baroness for her question. On free school meals, the Government fully support the provision of nutritious food in schools to enable pupils to be well nourished, develop healthy eating habits and concentrate and learn in school. There is so much evidence from a number of different bodies about the importance of the right nutrition to assist with learning and ensure that the school day is as beneficial as possible. We have full confidence that schools and catering suppliers will continue to deliver a quality service. As the noble Baroness will know, under this Government, eligibility for free school meals has been extended several times, and to more groups of children than under any other Government over the past 50 years. This has included the introduction of universal infant free school meals and further education free school meals, as well as the permanent extension of eligibility to children from all families with no recourse to public funds—for example, people with temporary immigration status—which came into effect in April 2022.
We are doing much more to assist households, but she rightly asked where this money is going. It is going directly to those households that need it. Farmers and producers, who are at that end of the supply chain, are being assisted, supported and incentivised in a number of ways. She will have seen measures brought in in the Budget to help farmers through fiscal changes. We are securing and ring-fencing the £2.4 billion a year that we spend supporting farmers, but encouraging them to move towards a system of sustainable farming so that they are protecting our natural capital. This secures the food supply in the long term; it is not just dealing with a temporary problem that has emanated from the alarming effect of the war in Ukraine. Of course, we need to take further long-term measures to make sure that we are incentivising farmers to continue to produce food close to those who eat it.

Earl of Caithness: My Lords, I thank the Government for their generous support, but what further measures beyond the Genetic Technology (Precision Breeding) Bill are they planning to help science enable farmers to produce more in this country while at the same time improving the environment?

Lord Benyon: I thank my noble friend for that question. Technology is our friend in tackling the needs of future generations. As part of seeing how the Genetic Technology (Precision Breeding) Bill would work, I went to a laboratory in Oxford and spoke to real experts in this field. I came away extremely optimistic that, through the changes we are bringing in through such Bills, but also the incredible work happening across institutions in the United Kingdom and abroad, our ability to feed ourselves in future is perfectly feasible. It needs will from government, investment and continued support for the scientific community, which is driving this change. Also, that scientific evidence needs to feed through to the farmers, producers and processors so that they can continue to produce food affordably and in a sustainable way. I can absolutely assure my noble friend that science is at the heart of government policy on this.

Baroness Lister of Burtersett: My Lords, it is good to hear the Minister talking so positively about school meals, so why are the Government still rejecting the calls from Henry Dimbleby and public health leaders to extend free school meals to all children in families on universal credit? When food prices are going up so much, we will have more hungry children than we have already.

Lord Benyon: As the noble Baroness will know, we have extended free school meals to the largest group of children for decades, and we will continue to look at any other measures we can take. I draw her attention to the work that the Department of Health and Social Care has done for infants. It has increased Healthy Start food vouchers from £3.10 to £4.25, which is a significant increase, helping low-income families to buy basic food such as milk, fruit and vitamins, ensuring that families are not choosing between costs and healthy choices. There are many other areas where the Government can assist, such as advice on diet and nutrition that enables families to make the right choices for them.

Baroness Bennett of Manor Castle: My Lords, the Statement expresses great faith in the food supply chain, which I can see only as an expression of extreme complacency. It also reflects that domestic suppliers—that is, supermarkets—have kept prices low. Has that not been the source of recent supply problems? The Government have been suggesting that we should be eating more turnips. Of course, the majority of turnips that we consume are produced outside the UK. Does the Minister agree that we cannot keep relying on the soil, water and labour of others to feed ourselves, particularly for the fruit and vegetables which we need far more of?

Lord Benyon: Our food supply chain was tested as never before through the pandemic. The noble Baroness looks at me as if to say that that is not the case—it is the case. It was tested as never before and found to be secure. With one or two short-term exceptions, it kept us in this country able to have the food that we needed available to us. On costs of lines in supermarkets, Defra works with retailers on a weekly basis to see what direction they are taking to tackle the crisis in household incomes and to make sure that lower-priced products are available, and that those lines are continuing. We do not have a command and control economy that directs our retailers in what they can produce, but they have risen to the challenge, providing a great many lower-priced lines which will continue to be available for families such as this. I hope that will continue.
Sitting suspended.

Strikes (Minimum Service Levels) Bill
 - Committee (2nd Day) (Continued)

Schedule: Minimum service levels for certain strikes

Amendment 18A

Lord Hendy: Moved by Lord Hendy
18A: The Schedule, page 3, line 31, at end insert—“(5) Regulations may not prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action; or create an offence.”Member’s explanatory statementThis amendment is intended to ensure that the regulations do not breach Article 11 of the European Convention on Human Rights by permitting the penalisation of individuals for exercising their right to strike.

Lord Hendy: My Lords, I shall speak to three of the amendments in this group; they bring into discussion matters of international legal obligation. Amendment 18A deals with protection against the excessive use of the regulations.
I ought to begin by reiterating something the noble Lord, Lord Allan, mentioned earlier, which is that we are dealing here with fundamental human rights. The right to strike is a fundamental human right. It has been held to be a right protected by Article 11 of the European convention in a series of cases, beginning with Unison v the United Kingdom. It is protected not only by Article 11 but by many other international treaties ratified by the UK. In fact, it is protected in many national constitutions; more than 80 protect the right to strike. Of course, it is not unlimited and there are always restrictions in one way or another, but its fundamental nature is that it is a human right.
So too is the right to bargain collectively, which was held by the European Court of Human Rights to be an essential element of Article 11 in the case Demir and Baykara v Turkey. The significance of that is that the right to strike is fundamental to the right to bargain collectively—in other words, to the protection of workers’ living standards. As was said 70 or so years ago, collective bargaining without the right to strike is effectively collective begging.
The right to strike has been lawful in the UK since at least the Trade Disputes Act 1906. There is no further justification, after the many Acts restricting that right since 1980, for yet further restrictions or limitations on the capacity of workers to defend their living standards. In particular, the European Court of Human Rights guarantees through Article 11 that strikers shall not be penalised for taking part in a strike. There are many cases to that effect, notably Danilenkov v Russia and Ognevenko V Russia.
The purpose of my Amendment 18A, given the breadth of the power to make regulations in this Bill, is to clarify that the Government will not use that power to impose an obligation not to exercise the right to strike or to penalise strikers specifically by creating a criminal offence. If that is what the Government intend or merely contemplate, the noble Lord will no doubt say so. If that is not what the Government intend, then Amendment 18A will cause no inconvenience.
Turning to Amendment 18B, as I have mentioned, the United Kingdom has ratified numerous treaties protecting the right to strike, in particular the International  Labour Organization Convention 87 and Article 6, paragraph 4 of the European Social Charter 1961, which is a charter of the Council of Europe. Reference is also made in the amendment to the trade and co-operation agreement of 2020.
The significance of the trade and co-operation agreement is that it requires that the parties to the agreement—the states of the European Union on the one side, and the United Kingdom on the other—will not regress from such standards. Article 387 requires that there be no regression in a manner which affects trade. I imagine the Minister will say that these provisions do not affect it; that may be a moot point. Beyond that, in paragraph 2 of Article 399, there is a commitment by the parties to
“respecting, promoting and effectively implementing”
the core labour standards. Those include ILO Convention 87 and Article 6, paragraph 4 of the European Social Charter.
We know, because the Minister mentioned it, that legal advice was taken on the standing of this Bill, which was presumably the basis on which the noble Lord was able to make the statement on the face of the Bill that it complies with the European convention. Quite understandably, the legal advice is not publicly available. However, I wonder whether it focused sufficiently on paragraph 2 of Article 399: the obligation to respect, promote and effectively implement those core labour standards in the Bill. My view, for what it is worth, is that this Bill will infringe those standards because it exceeds the limits the ILO imposes on minimum service levels. Of course, others will take a different view. However, as I endeavoured to say on the last occasion, there is a precautionary principle here. If there is a risk that we may be in breach of our international legal obligations, we should not take that risk.
My Amendment 36C would make the proposed minimum service levels conform to those ILO standards and hence to the trade and co-operation agreement. At this point it might be useful if I indicate what the relevant ILO standards are for minimum service levels. It has been said on occasion by those speaking on behalf of the Government that the ILO has accepted minimum service levels, but the problem is that the Bill does not conform to the ILO’s minimum service level requirements.
It will not take more than a few minutes to read out what the International Labour Organization’s committee of experts said about minimum service levels. It said that
“the maintenance of minimum services in the event of a strike should only be possible in certain situations, namely: (i) in services the interruption of which would endanger the life, personal safety or health of the whole or part of the population (or essential services ‘in the strict sense of the term’); (ii) in services which are not essential in the strict sense of the term, but in which strikes of a certain magnitude and duration could cause an acute crisis threatening the normal conditions of existence of the population; or (iii) in public services of fundamental importance.”
It said that minimum service levels
“must genuinely and exclusively be a minimum service, that is one which is limited to the operations which are strictly necessary to meet the basic needs of the population or the minimum requirements of the service, while maintaining the effectiveness of the pressure brought to bear; and … since this system restricts one of the essential means of pressure available to workers to defend their …  
The Bill does not impose those requirements, and I submit that it should.
I will develop that last point and give one more sentence. The ILO recommends that:
“The workers and employers organizations concerned must be able to participate in determining the minimum services which should be ensured, and in the event of disagreement, legislation should provide that the matter be resolved by an independent body and not by the administrative authority.”
The Bill plainly flouts that because the ultimate arbiter of the minimum service level is of course the Minister—the administrative authority. For those reasons, I beg to move the amendment.

Baroness Chakrabarti: My Lords, it is a pleasure to follow my noble friend Lord Hendy and to see the noble Lord, Lord Soames, in his place, because this group is about international law and a settlement that his grandfather had a great role in promoting, not just in this country or Europe but in the post-war world.
My noble friend Lord Hendy’s suite of amendments begins with his attempt to ensure that regulations would comply with the European Convention on Human Rights. I hope that the Minister will have no problem at all with that, because, in relation to this Bill—not some others in the current programme—the Government’s position is that the European convention is to be complied with. My noble friend’s Amendment 18A gets a little more specific in ensuring that Article 11 is complied with and people are not penalised for their trade union participation. It would give a more specific effect to what is clearly the Minister’s intention by giving a Section 19(1)(a) statement of compatibility under the Human Rights Act. I am grateful for that.
The Government’s current position and approach to international law is complex, if I can put it like that. Sometimes we are told that Bills definitely comply with this or that requirement of international law and sometimes we are told that the Government do not care about the ECHR and might even leave it if the Strasbourg court does not like us, and so on. In relation to this Bill, everything I have heard so far here, at Second Reading and in Committee, suggests that the Government want to comply not just with the European convention via our Human Rights Act but with international law more generally. I welcome that. However, the statement in the Bill, as required by Section 19 of the Human Rights Act, deals only with the European convention and, as we have heard from my noble friend—who is an expert; perhaps the leading expert there has ever been in labour law in this country—there are other equally important international agreements and conventions, not least the ILO, which is particularly important in this area of employees’ rights and trade union rights. If, as I suspect, the Minister is going to say that of course the Government want to comply with those conventions, he will have no problem at all with putting that commitment in the Bill.
Why should he agree to do this? Because it will mean that, assuming that this legislation passes, future Minister who have not actually taken the advice that  he has, or made the promises he has made and the commitment in the Bill, will be bound, when they make regulations—which are easy to make by ministerial fiat—to the commitment that he has made in relation to human rights. It is also important to put these commitments in the Bill because it will make our courts the ultimate referees of whether future Ministers, when exercising these broad regulatory powers, are actually complying or not.

Lord Woodley: My Lords, I support this group of amendments. I first apologise for my non-attendance at Second Reading, having had a hospital appointment that I could not get out of, following my serious illness last year. Had I been there, I would have said that the Bill is vindictive, unnecessary and undemocratic, as well as unworkable and unsafe, and likely to be unlawful As it stands, it represents a grave threat to trade unionists, trade unions and trade unionism, and the fundamental right to collective action, as my noble friend Lord Hendy said.
Undermining the right to strike in the way the Bill does, and giving employers the power to compel striking workers to cross their own picket lines, would poison industrial relations across vast sectors of the economy. As my noble friends Lord Collins and Lord Cashman said earlier, the point was made by the Government’s own impact assessment on the Bill’s predecessor, the aborted transport strikes Bill, which admitted that industrial action short of strike, such as overtime bans and work to rule, would rapidly increase as a result. I am sure that none of us would want to see that happen.
My noble friends Lord Hendy and Lady Chakrabarti have made the main arguments for these amendments, but I would like to say a few words about the importance of keeping to our international obligations and our international standing. This is especially true as we were founding members of the International Labour Organization, a cornerstone of building a better world for working people. Many countries still look to the UK as an exemplar in human rights. It is also important that, in the light of Brexit, we are not seen to be on a race to the bottom, undermining workers’ rights in other countries, particularly as we have relationships and supply chains across Europe and beyond.
The Minister is well aware that, as part of the trade and co-operation agreement with the EU, we made commitments to maintaining our current standards of workers’ rights—the non-regression clause mentioned earlier—and commitments to fundamental rights at work that are grounded in the ILO core conventions, including ILO Convention No. 87, the Convention on the Freedom of Association and Protection of the Right to Organise, which the Bill clearly violates.
The report from the Joint Committee on Human Rights also cast numerous doubts over the Bill’s compliance with Article 11 of the European Convention on Human Rights, including the difficulty for trade unions to foresee its consequences, its insufficient protection against arbitrary interference with Article 11 rights, and the Government’s failure to provide evidence establishing a “pressing social need” for most of these changes.
If, as the Minister has said, the legislation does not breach our international obligations—if it did, it would be a serious matter that would be a source of great shame—why not include this commitment in the Bill itself as a safeguard, as my noble friend Lady Chakrabarti suggested? That is all that the amendments seek to do. Surely the only reason to oppose this would be that the Government knew that they were breaching their international obligations with the Bill as it stands, and that they do not really care. I very much hope that this is not the case, but the Minister has a chance today to clear this up by supporting the amendments, and I genuinely and sincerely urge him to take the opportunity to do so.

Baroness O'Grady of Upper Holloway: My Lords, I will speak to Amendment 32B in my name and that of my noble friend Lord Collins, and to support my noble friend Lord Hendy’s amendments too. Amendment 32B is all about ensuring that regulations made as a result of the Bill’s provisions do not conflict with protections in the EU-UK Trade and Cooperation Agreement. There is a real concern about this; we have already heard several times that the impact assessment received a red rating from the RPC. Looking at that impact assessment, there is a question about whether the Bill would have an impact on trade and investment, and the answer given by the Government is no. That concerns many of us, as we know that the EU-UK TCA is our most important trade agreement with our closest trading partner.
I declare my interests in that, when the TCA was being negotiated, I was the general secretary of the TUC and a member of the steering committee of the European TUC. We had some very simple priorities on jobs, protecting workers’ rights and protecting the Good Friday agreement, so we were very keen to secure what we called a level-playing-field clause in that trading agreement to ensure that workers’ rights, conditions and jobs could not be undercut. That was really important to us; we worked really hard on it in the four years it took to secure the agreement. I met Monsieur Barnier a number of times, as well as David Frost—now the noble Lord, Lord Frost—and parliamentarians from the EU and the UK. Together, we campaigned for that clause to prevent unfair competition on the back of lowering labour standards. That was not an academic concern; there were real concerns that, in some quarters, the Brexit dividend was discussed as being one that would involve worsening workers’ rights, especially in respect of the working time directive, which put safe limits on working hours, paid holidays, rest breaks and equal treatment for agency and temporary workers.
At that time, we were also very conscious that several members of the Cabinet were co-authors of that now-infamous pamphlet Britannia Unchained, which specifically described opportunities to worsen workers’ rights. That level-playing-field clause is vital: it provides for non-regression and for no weakening of what are described by the ILO as “fundamental rights at work”, including
“health and safety standards … fair working conditions … information and consultation rights”
and protections for the “restructuring of undertakings”. If the UK breaks that commitment, it would have an impact on trade and investment.
The EU can impose temporary remedies, including trade sanctions. Of course—I hope the Minister is aware—the ETUC, of which the TUC remains a member, can raise a complaint directly with the European Commission. That is why the recent European Commission report saying that it was monitoring very closely developments in respect of fundamental workers’ rights, including the right to withdraw labour, should be taken so seriously. It is not covered in the impact assessment, as I have said, but I think that the Minister at one point said—correct me if I am wrong—that he would consider looking at whether that impact assessment needed to be revised. If he is willing to consider that, this is a key area that is vital for trade, investment and jobs, and it would be worth looking at it again. I very much hope that he will consider this amendment in that light.

Lord Fox: My Lords, I fully expect the Minister to stand up and tell us that none of these amendments, which have been put so well by noble Lords, is necessary. I expect him to say that there is no possibility of the Bill, once it becomes an Act, breaking or impairing our relationship with the international organisations that noble Lords have mentioned. I wonder how he will be able to say that, given the nature of the Bill.
We come back to its skeletal nature and the answer which nobody seems to know to the question “What is a minimum service level?” Until we know, we do not know whether the Bill breaks any agreements that we have with organisations in this country or around the world. I refer your Lordships to our previous debate in Committee, in which we discussed correspondence with the noble Lord, Lord Sharpe, in which he represented the issues around the fire and rescue services. I remind noble Lords that, after I prompted him on why the consultation had raised the issue of the Grenfell Tower fire and the Manchester Arena bombing, the Minister—the noble Lord, Lord Callanan—said that one thing the consultation sought to probe was that the minimum service level would include the ability to cope with issues on that scale. He did not disagree with me when I came back and said that that implied that 100% of the fire and rescue services in an area would need to have been named in the work order under a minimum service level. In effect, that would ban striking.
In the event of such a minimum service level, that calls into question our relationships with the ILO, the EU under the TCA and others, because it is a de facto ban on striking. It may or may not upset those relationships, but I want the Minister to be able to say what minimum service level is being modelled when he tells us that we do not need to worry.

Lord Callanan: My Lords, I sometimes wonder when I listen to the noble Lord, Lord Fox, whether I need to bother replying to these debates, because he has written my speeches before I get up. For the benefit of the House, I will go through this anyway.
Amendments 18A, 18B, 32B and 36C all relate to the UK’s international obligations. Before I deal with the amendments in detail, it is worth reiterating, as  I have previously and as we debated last time round with the noble Baroness, Lady Chakrabarti, that the Government firmly believe that the Bill is compatible with our convention rights and complies with all international conventions that the UK is signed up to. I signed a statement to that effect.
Amendment 18A in the name of the noble Lord, Lord Hendy, looks to ensure that the Bill does not prevent people from taking strike action and cannot be used to create an offence. I oppose this amendment because its effect would be to prevent any minimum service levels from being implemented at all. He will understand my reservations, given how the Bill is drafted in respect of the operation of work notices and where an employee would lose their automatic protection from unfair dismissal for industrial action if they participated in a strike while being named on a work notice. To be clear, our Bill does not prohibit strikes or other industrial action, but it does enable employers to continue to deliver a minimum service level to their users and stakeholders during and notwithstanding that action.
The Bill is about balancing the ability to strike with the rights and freedoms of others. Preventing minimum service levels being implemented does not strike a balance; it would merely maintain the current disproportionate impacts that strikes can have on the public—although I expect that that is a cause of legitimate disagreement between us.
Amendment 18B would ensure that the regulations did not compromise our obligations under the trade and co-operation agreement. However, given the reiteration I made earlier, we believe that this amendment is duplicative and unnecessary. The Government remain committed to our international obligation and respect the process of the respective governing bodies in providing any rulings that are required concerning compliance. I recognise that the noble Lord, Lord Hendy, has a desire for relevant international conventions and treaties, and their associated governing bodies, to have a greater role in respect to minimum service levels in Great Britain. But my argument here is that incorporating decisions by supervisory committees into domestic primary legislation, as this amendment seeks to do, goes way too far.
Amendment 32B, tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, seeks similarly to prevent minimum service regulations being made where they could be said to be within scope of the trade and co-operation agreement and other international obligations. As I stated at the outset, the Government firmly believe that we are entitled to bring forward this legislation—many other European countries already have similar legislation—which I remain satisfied is compatible with all the international conventions the UK is signed up to. The noble Baroness will, of course, be aware that there are existing mechanisms for monitoring adherence to the trade and co-operation agreement—if indeed there are concerns from EU member states or the European Commission, although I do not believe there will be.
In any case, I am surprised if anybody thinks that ensuring that the public are able to access some level of service in key sectors, including emergency services,  during strike action goes to the heart of the TCA, not least because many EU member states already have minimum service level arrangements in place. Indeed, in some of the services we have mentioned, some member states ban strike action completely in those areas. As drafted—and perhaps not intentionally—this amendment would prevent minimum service levels regulations being made at all, which, given that is the purpose of the Bill, we clearly cannot accept.
Finally, on Amendment 36C from the noble Lord, Lord Hendy, and to respond to the points the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Woodley, made, as I have stated previously, the Government firmly believe that the Bill is compliant with convention rights and international conventions. The Bill also enables regulations to be made in a way that is compliant with the convention rights, and on making those regulations, Secretaries of State will need to carefully consider the relevant articles of the ECHR, alongside international conventions, if they choose to suggest minimum service regulations to Parliament. So they will also have to make similar statements.
I highlight that this amendment seeks to restrict minimum service levels so that they can be made only where they are necessary to provide protection for the life, personal safety or health of the whole or part of the population. While the protection of life and health are indeed important aims of minimum service levels in areas such as healthcare—

Baroness O'Grady of Upper Holloway: I apologise to the Minister—it took me a while to find this on my system. He referred to minimum service levels being common in other European countries. I submitted a Written Question on this, to which the noble Lord, Lord Johnson, replied:
“The Government does not believe that direct comparisons with other European countries are particularly helpful because of the different administrative and legal frameworks governing industrial action.”
The Minister will also be aware that the overwhelming majority of the other countries in Europe that are cited provide for negotiated minimum service levels, not state diktat.

Lord Callanan: I did not say that they were particularly common, just that they exist in some European member states. Of course, provisions, agreements, labour relations, laws, relations with trade unions, et cetera, are different in other member states. The example I cited last time was border service provisions; many member states prohibit, in effect, strikes by border service personnel because those services are delivered by police, army or military services. The arrangements are different in other member states, but that goes to my point that we are entitled to do what we believe appropriate for the United Kingdom. However, similar provisions—albeit in different circumstances—exist in other member states of the European Union and other democracies worldwide. Noble Lords will remember from the previous Committee day the reasons we have given for believing that the six sectors in the Bill are correct.
The amendment would incorporate into domestic law decisions of supervisory committees of the ILO. These committees’ conclusions and recommendations are non-binding; they are intended only to guide the actions of national authorities. The only body with explicit competence to interpret ILO conventions is the International Court of Justice. I highlight to the noble Lord, Lord Hendy, that the ILO supervisory committee has stated that minimum service levels can be made in services
“which are not essential … but where the extent and duration of a strike might be such as to result in an acute national crisis endangering the normal living conditions of the population … and … in public services of fundamental importance.”
We do not believe that we are in contravention of our ILO duties. The amendment does not provide for minimum service levels in those circumstances, and I am therefore puzzled as to why the noble Lord did not include them in it, given that they were referenced previously in Committee and today.
I hope that, with these reassurances, I have been able to persuade noble Lords to withdraw and not move their amendments in this group.

Baroness Chakrabarti: My Lords, I have two quick questions about the Minister’s answer to my noble friend Lord Hendy. First, I think I understood from his answer that he thinks that Amendment 18A would drive a coach and horses through minimum service level agreements. This may be an argument about “prohibit” or “prohibition”, because my understanding of the Bill as drafted is that, where a minimum service level agreement is imposed by regulations, that will remove some of the existing protections in trade union law. The Minister clearly wants that to be the case, but surely he is not suggesting that, for example, regulations should be able to impose criminal or civil penalties on workers. If that is not his intention, could something like Amendment 18A not be welcomed to make sure that regulations could not create that level of penalisation in the Bill? If regulations cannot criminalise workers, it is important that that is on the face of the regulation-making power.
Secondly, on the ILO as opposed to the ECHR, I think I heard the Minister say that the only body competent to determine compliance with the ILO is the International Court of Justice. That is hardly taking back control, and it is completely inconsistent with this Government’s permanent position on the Strasbourg court and the ECHR. What would be wrong with a domestic court having the ability to scrutinise whether or not regulations made by a future Secretary of State comply with the ILO conventions?

Lord Callanan: I will deal with the noble Baroness’s two questions. First, the reason I opposed Amendment 18A from the noble Lord, Lord Hendy, is that we believe it would effectively kill the Bill—indeed, this may be the noble Lord’s intention. This is because where a person is named on a work notice, they are effectively prohibited from striking for the day that they are identified to work; they would lose their automatic protection from unfair dismissal for industrial action if they did participate in the strike. This means  that regulations for minimum service levels could not be made within the current drafting of the Bill. They would enable the prohibition of participation in a strike, and therefore the minimum service level could not be implemented—thus killing the Bill. I am sure the noble Lord, Lord Hendy, would be very happy if that were the case, but noble Lords will also understand that that is why the Government oppose the amendment.
Supervisory committees of the ILO are not entitled to interfere in UK law. There are conventions that we are signed up to, but the only way to interpret the decisions of the ILO is through the provisions of the ICJ. I am not a legal expert, but I can get legal clarification that it is possible for the ECHR to take into account the rulings of the ILO when adjudicating the relevant provisions in the ECHR.

Baroness Chakrabarti: Please forgive me; I do not mean to be difficult, but these are very important points and I do not think I made myself clear in the way I put the questions to the Minister. I will try just one more time.
I do understand that the Minister intends that once minimum service level agreements have been imposed by regulation, employees who breach work notices will lose their protection from dismissal. I understand that as the ultimate sanction against them in the Bill. But my understanding of Amendment 18A is that it is also trying to deal with things such as regulations being used to create new criminal offences or new civil penalties—things that are not just removing protection from dismissal. Is the Minister prepared to say, in Committee, that this is not the intention behind the regulation-making power? Accordingly, will he consider amendments at a later stage to that effect?
I was not suggesting that it is about the Strasbourg court adjudicating on the ILO. I was suggesting that in our domestic public law, our courts are normally capable of second-guessing the legality of regulations. If that is to be the case, will our courts be able to determine whether regulations comply with the ILO?

Lord Callanan: I am happy to give the noble Baroness the commitment she seeks. There is no intention to create any criminal offence within this Bill; it does not do that, and it is absolutely not our intention.
On her follow-up question, the provisions in the TCA relevant to minimum service levels include commitment to ILO conventions, non-regression and rebalancing. Enforcement mechanisms vary, depending on the particular provisions. For the non-regression clauses, enforcement mechanisms include consultation and escalation, involving panels of experts and potential rebalancing measures, all of which would take place at an international level and cannot bring any claims in the domestic courts. I hope that gives the noble Baroness the reassurance she is looking for.

Lord Hendy: My Lords, I am very grateful to the Minister for the clarity of his answer, and to all noble Baronesses and Lords who participated in the debate. I will not do them the disservice of attempting to summarise their speeches.
Let me deal with two points arising from what the Minister has said. First, he asked whether my intention is to kill the Bill. It would certainly be my desire, but that is not the effect of these amendments, for sure. He says Amendment 18A and the other amendments would prevent minimum service levels being set. That is simply wrong, as a matter of law. There is nothing to prohibit the minimum service levels being set. What the amendments propose is that the minimum service levels be set in such a way that, first, they cannot penalise workers for going on strike—individual workers who are requisitioned to provide service under a work notice should not be penalised, in accordance with the jurisprudence of the European Court of Human Rights—and, secondly, they comply with the standards of the ILO and the European Social Charter.
That brings me to my second point, which is the importance of the ILO. I say this with the greatest respect, but I am not sure the Minister has quite understood the position of the ILO in the hierarchy of international law so far as the United Kingdom is concerned. Before I explain that, I will make one thing clear: the Minister read a passage from one of the supervisory bodies of the ILO—it was in fact the committee of experts—and suggested that I had not quoted it. I read that very passage on to the record earlier this afternoon; I think Homer might have nodded briefly and missed that. The Minister said that the decisions of the ILO are not binding. In one sense, of course, that is true. Britain was the first country in the world to ratify Convention 87, which is the most ratified of all the conventions of the ILO. It is an international treaty and we are bound by it, but I agree that it is not binding in domestic law.
Secondly, ILO conventions and their jurisprudence are taken into account by the European Court of Human Rights in interpreting the various articles of the European convention, particularly Article 11. If you want to know what Article 11 has to say about the right to strike, it is no good looking at the text of that article. What you have to look at are the decisions of the European court. Every one of them refers to the jurisprudence of the ILO and the European Social Charter in defining what permissible restrictions there may be on the right to strike.
The third reason the ILO is so crucial is because of the trade and co-operation agreement. This is the point I was endeavouring to communicate to the Minister, but I think I failed to do so. I read a few words from Article 399 of the trade and co-operation agreement, but let me read a sentence. Article 399(2) says that
“each Party commits to respecting, promoting and effectively implementing the internationally recognised core labour standards, as defined in the fundamental ILO Conventions”.
So we are bound by the fundamental ILO conventions. Article 399(5) makes specific reference to implementing the provisions of the ILO conventions ratified by the UK and the provisions of the European Social Charter ratified by the UK.
It is not a question of the ILO interfering in the domestic jurisdiction of British courts or the British Parliament. We have chosen to be bound by the provisions of the ILO—a choice that we repeated in 2021 when we ratified the TCA. The fact of the matter is that we  do not comply with the requirements of the ILO in relation to minimum service levels, particularly—I mentioned this earlier, but the Minister did not deal with it—because the ILO requires that minimum service levels are set with the intervention or input of the social parties, particularly the trade unions, and that there should be a specified mechanism for resolving any disagreements. That is not what the Bill provides, so we may well be in breach. Having said all that, I beg leave to withdraw my amendment.
Amendment 18A withdrawn.
Amendments 18B to 20 not moved.

Amendment 21

Lord Fox: Moved by Lord Fox
21: The Schedule, page 3, line 34, after “may” insert “if all options to avert a strike have been exhausted”Member’s explanatory statementThis amendment seeks to ensure that work notices are only issued where all options to avert a strike are exhausted.

Lord Fox: My Lords, this is a slight change of gear from where we just were. This is a probing amendment, and it uses the idea that work notices can be used only after all other avenues have been exhausted. It returns a little to the thought experiment I was trying to have, which is the applying of the Bill, or the Bill if enacted, to what we have witnessed in the Government’s management or mismanagement of the public sector strikes that we have just been going through.
No matter what the strike and no matter which the sector, disputes are settled only when there is negotiation. The Government seem to have taken a long time to understand this with the disputes that we have just come through. The rail strike has been going on since June, and the nurses’ strike started in the autumn, but only in the last few weeks have these strikes begun to end, thanks to negotiation. Why did it take so long? Why were so many operations delayed? Why were so many people’s lives, as the noble Baroness, Lady Noakes, pointed out, disrupted by service delays in, for example, the train services?
Strikes are an extreme action for all workforces—workforces do not willingly go in for them—and that is certainly true in the health service. We have to remember that in the 106-year history of the Royal College of Nursing, this is, as far as I know, the first time that nurses have balloted and decided to strike. This is in a sense a very hard decision for those employees. I wish to probe the Minister in that context. Had these measures been available—had a minimum service level for the health service or the train services been in place—when and how would they have been deployed? Indeed, would they have been used differently in the two different services, one being essentially an emergency service and the other a transport service?
There has been no clarity on how these minimum service levels could and will be used. The noble Baroness, Lady Bloomfield, and I think the Minister, the noble Lord, Lord Callanan, himself, have said that they  would be a matter of last resort. However, negotiating is in fact the last resort that brings people to the table and ends strikes. Where does the minimum service level fit in the pantheon of industrial relations here? That is what this amendment seeks to probe.
What we saw with the strikes that have been going on is that the decision to negotiate can only have been a political decision. The launch of the Bill was associated with that political decision and designed to shift the blame or the balance of blame to other sources. The only reason we saw movement is because in the end the Government decided that they had to negotiate with the health unions and started to gradually lift the blockers that they had been using on the train employers in order to move things forward. This is the evidence of how we see the Government operate. They are the ones who brought forward this measure, so how does this measure fit into that sort of behaviour? I beg to move.

Baroness O'Grady of Upper Holloway: My Lords, it is worth reminding ourselves why it is necessary to scrutinise this Bill in such detail. The RPC’s latest Independent Verification Body Report confirms that, since 2021, there has been an alarming increase in the number of impact assessments that have been red rated—not fit for purpose—and, of course, this Bill is one of them. There were no red ratings between 2016 and 2021; since 2021, there have been eight.
Turning to the amendments, which I am very pleased to support, one of the other fundamental flaws of the Bill is that it takes a provocative, one-sided position on industrial relations. Its partisan approach fundamentally offends people’s sense of fair play. The public are all too aware how real-terms cuts in pay and underfunding of public services have led to a crisis in staffing levels and service backlogs. Strikes are merely a symptom of worker discontent and, as all the polls show, that discontent is often supported and shared by service users.
As many noble Lords have observed, workers never take the decision to vote for strike action lightly and unions always want a negotiated settlement, but sometimes it seems that the only way some employers understand the true value of labour is when that labour is withdrawn. The task of government should be to help prevent disputes, or at least to help resolve them when they happen, not to throw fuel on the fire, but this Bill is based on the premise that strikes are the fault of workers and unions, as if they were never caused by the failure of employers to listen, compromise or negotiate, by years of government underfunding and cuts, or by the frustration that arises when the Government take so long to put more money on the table when, had they acted earlier, the dispute could have been settled months before without any need for a strike.
The Bill imposes yet more draconian requirements on unions, but no commensurate obligations on employers or government. Ultimately, it gives the Secretary of State the whip hand to weaken workers’ bargaining power and attempt to render a strike meaningless.
The partisan stance of the Bill is a fundamental flaw, but the naming of individual workers in work notices is the provision that many find most shocking.  Why is it necessary for the Secretary of State to require that work notices list the names of individual workers who will be required to work, rather than just numbers—as I am aware that a number of employers have suggested? In response to a Written Question I asked, the noble Lord, Lord Johnson, said that the Bill provides:
“enforcement mechanisms to maximise the assurance that Minimum Service Levels (MSLs) will be achieved on strike days”—
in other words, naming of individual workers is necessary in order that they can be threatened with the sack.
How will the Secretary of State ascertain whether that list of individual names has been chosen without bias, discrimination or a vindictive attempt to target trade union activists? What will be the process and additional Civil Service resources needed to do that effectively? I genuinely do not know. Can the Secretary of State add or remove individual names, should a legitimate complaint be made? In the 2019 Queen’s Speech, when minimum service legislation for transport only was first planned, the Government pledged to ensure that
“sanctions are not directed at individual workers.”
What changed?
At Second Reading, the Minister asserted:
“This legislation is not about sacking workers”—[Official Report, 21/2/23; col. 1563.]
but of course it is precisely about sacking workers. The legislation expressly provides for the power that workers—nurses, firefighters or teachers—who disobey a notice to work during a strike for minimum service levels, perhaps unilaterally imposed by an employer and sanctioned by the Secretary of State, can be sacked. Crossing fingers and hoping that it will never happen is no comfort to those workers whose jobs are on the line. Key workers who kept Britain running during the pandemic and who were lauded as heroes now look set to become martyrs. Why is that, when emergency cover, where genuinely needed, is already arranged through mature agreement rather than diktat?
It has been so difficult to secure answers to many of the questions raised in this Committee, but nevertheless I will repeat another one. If a named worker calls in sick on the strike day that they have been notified to work, can they be sacked too—yes or no?

Bishop of Manchester: Amendment 21 seems to be just common sense. Surely it is appropriate that if a work notice is to be issued, it is issued only when all the options to avert a strike have been exhausted. As we keep hearing today, work notices bring serious consequences with them. As the Bill stands, it could lead to an individual employee losing their job. Beyond that, if trade unions do not take “reasonable steps” to comply with the work notices, they could face significant financial damages and the strike could be classified as illegal. If that happens, all the workers taking part in that strike risk losing their livelihoods.
Therefore, it is not clear what these “reasonable steps” are. The Joint Committee on Human Rights is not clear either, saying that
“the provision requiring trade unions to take ‘reasonable steps’ may fall foul of the requirements of Article 11”.
What assurances can the Minister give us that whole swathes of workers will not lose their livelihoods through  this? Work notices should never be used lightly, especially in their current form. Amendment 21 provides some safeguards to ensure that this does not happen.
We can see from recent weeks and months, as other noble Lords have said, that trade unions want dialogue. They want to discuss matters of concern. They want to find mutually agreed solutions, which are the only solutions that actually work in practice. But if the Government adopt a more heavy-handed approach to strike action in those sectors where they have what elsewhere might be called coercive control, or if employees feel pressed to do so under fear of civil action, as we have heard today, this risks further division and delays agreement. If we allow work notices to be issued when other avenues to settle a dispute have not been fully explored, perhaps for political reasons of the day, that will, in my view and in the view of many others, extend and escalate disruption.
In its present form, the Bill will not reduce the short-term destruction caused by strikes; rather, it will lead to longer and more damaging strikes. That is not in what the Minister referred to earlier today as my parishioners’ best interests. It is not in anybody’s best interests.

Baroness Randerson: My Lords, my noble friend Lord Allan referred earlier, in relation to Amendment 15, to the key issue of human rights. The amendments in this group look at other aspects of this concept. Amendment 23 in my name seeks to examine the practicalities of an employer specifying a minimum service level. Other speakers have referred to the problems associated with this. It is going to be an invidious process. Let us look at how this will work.
The Secretary of State grandly specifies a minimum service level, then washes his or her hands of the practicalities and the personnel implications of it, because employers will have the job of implementing it. The Government will say that it is voluntary, as the Minister said earlier today, but at the same time, she made it clear that employers will be under some level of pressure from the Government to implement minimum service levels. This simple Amendment 23 makes it clear that employers need to specify only the number of employees in each role rather than by name in their work notice.
I realise that in many workplaces the identity of those people will be obvious, simply because the workplace or the group of people is too small to avoid being able to identify them. But there are issues about public identification that relate to individual public safety. In this era, when online fame—or infamy—can come about very suddenly, there are real concerns about the personal safety of anyone identified by name in a work notice, as well as that of their families. There are other complex issues to be considered. It is okay for large groups of workers; for example, if you specify in your work notice that you need 100 nurses, that is a fairly anonymous process. But what about the identity and protection of the person concerned when you specify that you need one anaesthetist?
How will employers choose who is specified? This, too, will be an invidious process, however they try to approach it. Which 100 nurses, and which one anaesthetist,  will have to work? As an employer, if you choose non-union members, that might be understandable, because you will perhaps have an easier ride with those individuals, but it is not acceptable that people who choose not to join a union should receive a greater obligation to be nominated and specifically identified on those days, rather than just going into work in the normal course of events. What about choosing only keen trade union members, as opposed to rank-and-file members? Obviously, however you approach it, you are causing huge controversy, whichever way an employer jumps.
It is so much better to work with employees on a voluntary basis. This has been done in many cases during the recent spate of strike action, and it has worked well. The Bill would destroy that way of working.

Lord Callanan: My Lords, I will now reply to the debate on Amendment 21, tabled by the noble Lord, Lord Fox, and Amendment 23 in the name of the noble Baroness, Lady Randerson, which have been grouped. These seek to limit how and when a work notice can be issued by an employer.
Amendment 21 seeks to place an additional and, in our view, burdensome requirement on employers in relation to issuing a work notice. Amendment 23 seeks to alter, fairly fundamentally, how a work notice operates. Both amendments would create unnecessary uncertainty for employers, unions and workers around their respective obligations for work notices.
Amendment 21 requires the employer to exhaust all options to prevent a strike before they issue a work notice. However, it is my submission that employers are already incentivised to avoid strike action due to the substantial cost and disruption that it causes them. If a trade union has given notice of a strike under Section 234A of the 1992 Act, which must happen before any work notice can be given, it seems reasonable for the employer to assume that the options to avoid a strike have, in fact, already been exhausted for the purposes of producing a work notice.
It is also not clear what the test would be for an employer to show that all the options had been exhausted to prevent a strike, creating significant uncertainty for employers and trade unions. The Bill does not prevent employers and unions continuing to negotiate to reach a settlement on the broader trade dispute and, we would hope, for the strikes to be called off. However, we know that negotiations can be complex and can cause uncertainty, so all parties, especially the public, need the fundamental reassurance that the minimum service will operate on a particular strike day. Therefore, the Government resist this amendment.
Amendment 23 seeks to alter how work notices are to operate by specifying that the work notice must identify only the number of persons required to work during a strike rather than actually naming them. There are a number of problems with this approach. First, trade unions are required under the legislation to take reasonable steps to ensure that members identified in the work notice comply with that notice. For that to be true, the trade union would need to see the work notice and to know which union members have been identified as required to work in order for it to take those reasonable steps to ensure that those members  attend work rather than going on strike. Secondly, this amendment could lead to confusion between employers and workers about who exactly is required to work, particularly in instances where a large number of individuals are employed to deliver essentially the same duty—for instance, call handlers. There would no longer be workers
“identified in a work notice”
for the purposes of paragraph 8(3) in Part 2 of the Schedule. Consequently, the provision removing the automatic protection from unfair dismissal would presumably also not apply, and therefore cannot be accepted.
I reassure noble Lords that individuals named on a work notice will be notified of this as regards themselves only. They will not be issued with the work notice itself, and the work notice will not be a public document. Unions will be bound by data protection law in the usual way, and there will be no sanctions or consequences for individuals if the minimum service level is not then achieved.
Identifying individuals to work in advance of the strike day helps to provide clarity for workers, unions and employers about who exactly is required to work and the arrangements for that particular working day, as well as strike. Without this we believe it will cause confusion and would potentially lead to minimum service levels not being achieved, continuing the disproportionate impact strikes can have on the public, as well as potentially costly and unnecessary litigation between unions and employers.
Finally, let me pick up on the questions asked by the noble Baroness, Lady O’Grady.

Lord Monks: Would the Minister accept that there is tremendous scope for victimisation in the provision that he is talking about, which this probing amendment is opening out? If the work notice is imposed on union officials—convenors, shop stewards, secretaries or whatever—they are in an extremely vulnerable position. They may have been doing the negotiation. They may have been regarded by the employer as awkward. All of a sudden they are put in the frame to say that you are coming into work, regardless of the role they may have played in the origins of the dispute. Is this not a victimisation permit for employers to use in all kinds of circumstances?
I worked in a place where the senior steward had been sacked and was victimised, and it is quite a common occurrence—other colleagues here will perhaps know more about that than me. It seems that the Government are giving a blank check to employers to take on individuals who are prominent in the union, and putting them in an impossible position of being summoned in by the employer at the same time as they may well have been leading the workers in the particular dispute that is taking place. What would the Minister say about that idea that he is giving a charter for victimisation?

Lord Callanan: I understand the noble Lord’s concerns but I do not believe he is justified in his worries. The Bill is clear that an employer must not have regard to whether a worker is or is not a member of a union when issuing a work notice. If an employee  feels that they have been unfairly targeted then they can raise a grievance with their employer or ultimately take legal action to challenge whether the work notice complied with the law. That would then be a matter for the courts to decide.

Lord Blunkett: I have listened with great care to what I think has been an analytical destruction of the very heart of this Bill. If, as the noble Lord has already enunciated, the right to take action for unfair dismissal is automatically removed by this Bill, how on earth can an individual take a grievance?

Lord Callanan: I do not understand the point the noble Lord is making.

Lord Blunkett: I used to teach industrial relations a long time ago—I may be rusty. The purpose of unfair dismissal protection is that the employer cannot arbitrarily take away the right of a person to their employment unless they have good cause. If they have declined, and have taken a grievance following the notice they have been given, and unfair dismissal protection has been withdrawn, how can that grievance procedure be proposed and implemented?

Lord Callanan: They lose their protection only if they do not comply with a work notice. The whole principle of this—as the noble Lord has studied industrial relations, he will understand—is that, for a strike to be lawful, effectively you are breaking the contract you have with your employer. If the strike is lawfully called, you are entitled for the purpose of industrial action to break that contract. This merely reinstates that contract between you and your employer. If a work notice is issued and you do not comply with it, it would be treated as an unauthorised absence. There is no intention to say that that will result in dismissal. I would have thought that that would be very much a last course. As I said at Second Reading, we do not believe it will result in people being dismissed. We believe people will comply with the regulations and the law, and that the Bill will have the effect that we intended.

Lord Hendy: I am sorry but I did not quite understand the Minister. I can see that dismissal for refusing to comply with a work notice might be a matter of last resort for the employer, but we are dealing here with the potential for bad employers to take the opportunity to sack somebody, and they might sack somebody without notice. If they do that, there is no possibility at all of the worker taking up a grievance. I do understand what other legal avenues there might be for such a worker—I can visualise none.

Lord Callanan: I was responding to the point I was asked about, and I made the point that, under the Bill, it is clear that an employer must not have regard to whether a worker is or is not a member of a union when issuing the work notice. I was outlining procedures that they could then follow if that was the case. Ultimately, they could challenge it in court, and that would be a matter for the courts.
I was going to go back to the point from the noble Baroness, Lady O’Grady, but I see that the noble Baroness, Lady Randerson, wants to intervene.

Baroness Randerson: In order to reassure me on the issue of names becoming public, the Minister said that names would not be made public and—I assume this is what he meant—would remain private between the employer and the employee. I just want to tease out how this will actually work. Apart from the fact that the person concerned would turn up at work on that day and so it would no longer be private, how would trade unions and other workers be able to challenge any of this legally? How would they challenge the overall balance of the decision-making of the employer and the fairness in the way in which all this has been carried out, particularly if someone were to end up losing their job as a result of the whole process? How would there be any legal assurance about this if the whole thing is cloaked in mystery?

Lord Callanan: Let me outline the procedure for the benefit of the noble Baroness. The work notice will not be a public document. The Bill makes it clear that current data protection legislation applies, while allowing the employer to provide the work notice to a trade union so that the Bill can be effective. Under the Bill, trade unions are required to take reasonable steps to ensure that their members who are identified in the work notice comply with that work notice. The trade union therefore of course needs to see the work notice and to know which union members may be named, in order to enable it to take those reasonable steps. Unions will otherwise be bound by data protection law in the usual way. Additionally, while those named on a work notice will be notified about that regarding themselves only, they will not be issued the work notice itself. Naming individuals to work in advance of the strike day helps to provide clarity to the workers, to unions and to employers regarding arrangements for that working day as well as the strike.
If the Committee will now permit me to move on and answer the question posed by the noble Baroness, Lady O’Grady, that may provide some clarity on the Government’s thinking in this respect. The first question the noble Baroness asked was whether Secretaries of State have a say in who is identified in a work notice. Fundamentally, the work notice is a matter for the employer, so there is no way that Secretaries of State can influence who is identified on a work notice.
Secondly, the noble Baroness asked whether a worker would be in breach of a work notice if they were sick on the relevant strike day. Workers should of course be supported if they are unwell and cannot work, and it remains the case that if a worker is too unwell to work, they are not obliged to work under a work notice. I hope that provides the clarity the Committee is seeking on this point, and I therefore hope that the noble Lord can withdraw his amendment.

Lord Fox: My Lords, this debate has revealed—or rather, not revealed—more than I expected. I am grateful to the Minister for imaginatively making things up as he goes along, which is what this seems to be. We  have a Bill in which none of the details is included, and we are relying on the Minister to flesh out from the Dispatch Box how the Bill will work. [Interruption.] I am not talking about what the Bill is, but how it will work.
At least two misapprehensions are driving that interpretation of how the Bill will work—not what it says in law, but what it will do. The first is that the nature of the service sectors the Bill has identified is such that they are politicised. The Minister’s description of the interplay between employer and employee is an unrestrained free-market description, but we know—and this is why I was talking in the last group about using the current dispute as a model—that this is not a pure-play employee/employer relationship. There are three parties in this dispute, and the third party is the Government. By experience, behind the scenes and sometimes in front of the scenes, the Government have been part of the process of progression of these disputes, and in the end, they have been the arbiter of whether or not they were settled. So the Minister’s description of the nature of the dispute in which these minimum service levels and work orders would be used is an inaccurate model for us to consider.
The Minister speaks of the unions and the workforce as if they are two separate entities. We have to understand what the Minister thinks a union is. In large part, the union is the workforce, so keeping the work order secret from the workers by giving it to the union is an interesting concept.
The second misapprehension is that the Minister is expecting the union to oversee the work order, which is a list of names. We know from the Bill, because it specifically says so, that the names on that list could and should be either union members or non-union members. How does the union deal with the non-union members? Is it fair for the non-union members to have their names on the union’s list? These are the sort of practical details we do not have to hand because we do not have a description of work orders and minimum service levels. That is the problem the Minister is having to deal with and is working very hard to do so.
I will look very hard at Hansard because I find it very difficult to understand how the Minister sees the unions and the workforce operating independently in a workplace. Leaving that to one side, I beg leave to withdraw Amendment 21.
Amendment 21 withdrawn.

Amendment 22

Baroness O’Grady of Upper Holloway: Moved by Baroness O’Grady of Upper Holloway
22: The Schedule, page 3, line 34, after second “a” insert “recognised”Member’s explanatory statementRestricts the giving of work notices to trade unions which are recognised (either by an employer or statutorily).

Baroness O'Grady of Upper Holloway: My Lords, in scrutinising this Bill there is always a risk that we miss the wood for the trees. The core concern remains that this Bill allows the Executive to take sweeping powers, avoiding proper parliamentary accountability and scrutiny, and to do so at the cost of fundamental human rights and freedoms.
The trade union movement is by far the biggest democratic membership organisation in this country. Millions of people join unions because the evidence is that membership is the best way to win better pay and conditions. Millions more recognise that by tackling exploitation and discrimination, and by upholding safety standards and providing, for example, second-chance learning opportunities to hundreds of thousands of workers every year, British trade unions perform a great public service.
The Minister often talks about balance, but the balance of power is already rigged in favour of employers and against working people. A key measure of that is that, at best, average wages have stagnated for well over a decade and workers’ share of the total wealth they produce has been shrinking.
Ministers claim that they are acting in the best interests of service users, but the majority of service users do not agree. For example, according to a poll for “Politics Home”, junior doctors are backed by a ratio of nearly 2:1. The bottom line is that service users trust public servants more than they trust Ministers. As IFS director Paul Johnson said in the wake of the Budget:
“You can’t keep cutting the pay of teachers, nurses and civil servants, both in real terms and relative to the private sector, without consequences for recruitment, retention, service delivery, morale and - as we have seen … strikes.”
Strikes are always the last resort. However, as has been vividly illustrated over the last few weeks, it is only because of that right to strike that the Government and employers have come back to the bargaining table and improved pay offers to rail workers, firefighters, health staff and, hopefully soon, teachers and others too.
The amendments in my name and that of my noble friend Lord Collins probe the Government’s appetite for taking sensible steps to prevent work notices being used to stop meaningful strike action, and to avoid victimisation, protect health and safety and protect equality rights. Without a prior requirement for an equality impact assessment, as set out in Amendment 30, there is nothing to help prevent direct or indirect discrimination on the grounds of race, sex and other personal characteristics. This, of course, is not an optional extra. The Government have a duty under the Equality Act and under Article 14 of the European Convention on Human Rights, which prohibits discrimination. We already know that this Bill will have a disproportionate impact on women—for example, nurses and cleaners—and on black and ethnic minority workers, who are significantly overrepresented in health and transport. The TUC and others have argued that by reducing union bargaining power, this Bill will be a huge step backward for tackling racism at work.
On a number of occasions, the Minister has been asked about protection against victimisation for elected workplace union reps, but I do not believe that it has been addressed adequately so far. Amendment 27 provides that opportunity. On all sides of this Committee, many of us are appalled that an employer and, ultimately, the Secretary of State propose to name individuals to work during a strike and to sack them if they refuse to obey. I anticipate that the Minister may suggest—indeed,  he has suggested—that workers and reps who are victimised could make a claim to an employment tribunal, but that is cold comfort when your livelihood is stripped away. I remind the House that the NHS is not the only service suffering backlogs: the average waiting time for a first hearing at an employment tribunal is now 335 days for a single claim, or 55 weeks for multiple claims.
On Amendment 22, during day 1 of Committee, I asked the Health Minister, the noble Lord, Lord Markham, whether, in principle, Amazon could be included within the scope of “health services”, alongside other private companies, for the purpose of the Bill. I still have not had time to read the letter of the noble Lord, Lord Markham, with the attention it deserves, but the noble Lord certainly confirmed on the day that, yes, Amazon could be included in principle. I raise that for a couple of reasons. First, Amazon is a powerful multinational corporation that is notorious worldwide for its anti-trade union activities and oppressive treatment of workers. As I mentioned, Amazon warehouse workers in Coventry are now being paid £11 an hour—it is interesting that Amazon has raised this, in the wake of the first strikes that they have ever taken in this country.
Noble Lords will be aware of a GMB investigation using freedom of information requests that shows that one pressure on our ambulance services is the surge in call-outs to Amazon warehouses in the run-up to black Friday, a time of year when Amazon workers are under huge pressure to achieve targets. It is an inhumane pace of work that poses a danger to health and increases the likelihood of accidents—hence the spike in call-outs.
My other reason for raising the Amazon case is that those workers are of course on strike for union recognition, which they do not have yet. They want an agreement to collectively bargain with the employer on vital matters like pay, rest breaks, health and safety, but so far, shamefully, Amazon is refusing to recognise the union. In principle, if Amazon could be included in minimum service levels, as we were told, it could just draw up a work notice to force those workers to break their own strike. It would not even have to go through the pretence of consulting with the union, because it refuses to recognise one. In fact, any bad employer covered by the Bill could see this as an incentive to derecognise unions, and all with the blessing of this Government. What happens if the workers refuse to obey? They face the sack. If the union is deemed not to have taken these undefined “reasonable steps” to force them to work, it would be hit by legal action and all striking workers could be sacked. So Amendment 22 seeks to prevent the Bill becoming a licence for bad employers who refuse to recognise, or who want to break, trade unions.
Finally, regarding Amendments 24 on reasonable steps for employers, and Amendment 31 on assessments of health and safety, and consultation with trained and expert workplace health and safety union reps, the key concern has been the apparent lack of government understanding about the realities of running services in the six sectors and how to do so safely. For example, noble Lords will be aware, which is something of an  irony, that the PR around the Bill claims it is about safety, when one of the key issues driving rail disputes has been the axing of safety maintenance jobs and safe staffing levels on platforms. Of course, the risk of dangerous overcrowding on platforms is something that would be made only worse by the Bill.
No doubt rail companies have already told Ministers, just as they have told us, that the Bill is totally unworkable. The Rail Safety and Standards Board chief Mark Phillips said that this legislation,
“won’t make the slightest bit of difference”,
to how many trains the industry can be run because of operational and safety concerns. He also expressed views about the Bill’s unworkability in respect of workers calling in sick on the days of strikes. Mick Whelan, the general secretary of the train drivers’ union ASLEF has observed:
“To run 20% of trains would require 40% of the drivers. It is not as simple as just reducing the number of drivers (and other staff) to 20%. There are issues around route and traction knowledge ... have the right drivers in the right places.”
The Government’s plans could also extend the disruption caused by industrial action over a much longer period. It is not just the unions that are saying so. Again, as has been recognised, the Department for Transport’s own impact assessment for the transport strikes Bill suggested that MSLs could increase the frequency of strikes and industrial action short of strike action, as well as having an adverse impact on industrial relations.
The Minister confirmed previously that workers named in a work notice could only be forced to work their contractual hours. Yet the safe delivery of many of our public services, from NHS wards to classrooms, crucially depends on voluntary unpaid overtime, far above those contractual hours. So perhaps the Minister can explain how a minimum service will be defined when a so-called normal service depends so heavily on overtime, whether paid or unpaid. Would employers and the Government simply require 100% of the workforce to break their own strike to achieve that so-called minimum? So far, the Government have been unable or unwilling to tell us. Little wonder then that many people see the Bill as a barely disguised bid to ban strikes by the back door.

Lord Woodley: My Lords, I support the amendments in this group, but the contribution by my noble friend Lady O’Grady is a heck of an act to follow. I should like to talk specifically on Amendments 25 to 28, which deal with the serious issue of targeting specific workers, especially, I say to the Minister, trade union activists. On reflection, I could have raised this in the debate on Amendment 21, but it is appropriate to do it here.
These amendments in the name of my noble friends Lord Collins and Lady O’Grady contain the issue of work notices and the potential for bad bosses to target, humiliate and victimise trade union activists—as has been raised by my noble friends Lord Monks, Lord Hendy and Lord Blunkett. Unfortunately, history is full of examples where bad bosses, given the opportunity,  victimise workers in struggle. I say this seriously. I am talking about bad bosses. I have met many good bosses in my lifetime.
Let us go back 30 years, when the major players in the construction industry blacklisted hundreds of activists, humiliating them by depriving them of making a living and denying that they were ever doing so—and there are many other examples that I could give. In the Bill, we have notices issued to break a strike. Is the Minister really telling me that the bosses will not target activists, shop stewards, branch officials, conveners and even health and safety reps? Let nobody say that this will not happen; it will, and there is absolutely no protection in the Bill for trade union activists.
It is all very well for the Minister to say that an employer cannot use union membership as the basis for choosing which workers are compelled to break their strikes—although there seem to be no sanctions whatever if they choose to ignore this—but there is nothing to stop them choosing union activists, and experience tells us that they will. Strike leaders will obviously be at the top of the bosses’ hit lists, but nobody is safe from being forced to make the agonising choice between betraying your trade union principles of solidarity and standing together as workers, or potentially losing your job.
Let us take health and safety nominated reps. They do a great job for workplaces but, as my experience tells me, they can be somewhat pedantic, both to companies and, on occasions, to trade unions. They are not even protected and are therefore open to discrimination if they are told to cross a picket line that other workers have voted for. Their independence will be compromised, and this will not help companies or businesses going forward.
The disgraceful thing in the Bill is that it gives employers the right to list trade union members who have already jumped through hoops to vote for a strike and will now be forced to betray their colleagues and their own principles. If they do not, they can also be fired. Surely that is unacceptable in 21st-century Britain. The Joint Committee on Human Rights certainly thinks so: in its hard-hitting report, it suggests an amendment very similar to Amendment 27. The amendments here go further and offer broader and vital protection for trade union activists in particular, and I urge Members to support them.
I conclude with a very simple question for the Minister: is this legislation intended to be used by bosses to target, humiliate and even victimise strike leaders and other trade union activists? If not, why is there nothing in the Bill preventing this from happening? We need to know, and we need to know now.

Lord Fox: I will speak very briefly to this group of amendments; I will make no attempt to emulate the speeches from either the noble Lord, Lord Woodley, or the noble Baroness, Lady O’Grady, who have great experience in the union movement.
In the Bill, there is a specific requirement for the unions “to take reasonable steps” to implement work orders. On these Benches, there is still no understanding of what “reasonable steps” actually means and what  legal jeopardy unions would be in if they did, or did not do, particular activities. However, I characterise this collection of amendments as causing the employers to take reasonable steps not to victimise members of the union as a result of this legislation. Therefore, it adds a mirror to the reasonable steps that the unions have to observe, so that the employers should similarly observe the same steps—and I support the spirit in which the amendments have been delivered.
The noble Baroness, Lady O’Grady, mentioned private sector deliverers. Having read the letter from the noble Lord, Lord Markham, my reading is that he rules providers such as Amazon out of the remit of this legislation. It would be helpful if the Minister could confirm whether my interpretation is correct. I credit the noble Lord, Lord Markham, with coming to your Lordships’ House and participating in Committee. We had no such benefit of a Transport Minister, and we still do not know the position of private sector suppliers of services in the transport industry. While we seem to have an explicit ruling out of private sector deliverers in the health service, we have no such ruling out in the transport sector. Will the Minister, in responding to or confirming my interpretation of the letter from the noble Lord, Lord Markham, also tell us whether the similar and other deliverers of private sector services, which are crucial to the railway industry, will be included in the remit of the Bill, or, as in the health service, not included?

Lord Callanan: My Lords, I thank all noble Lords who have participated in this short debate: the noble Lords, Lord Collins, Lord Hendy, Lord Woodley and Lord Fox, and the noble Baroness, Lady O’Grady.
Amendments 22 and 24 to 31 all relate to placing additional requirements on the process of issuing our famous work notice. It is the view of the Government that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. The Bill explicitly requires that employers must consult a relevant trade union, and have regard to their views, before issuing a work notice. Additionally, work notices must not include more persons than are reasonably necessary to meet the minimum service level and employers, as I said earlier, must not have regard to whether a worker is or is not a member of a trade union when producing that work notice.
I respond, first, to the point made by the noble Baroness, Lady O’Grady, who waxed lyrical about Amazon warehouses. While it is possible for a private business to be in the scope of minimum service level regulations, if they provide a relevant service as specified within the regulations, I am happy to reassure the noble Baroness that the Government have no plans or intentions to apply minimum service levels to Amazon.
Amendment 22 tabled by the noble Lords, Lord Collins and Lord Hendy, and the noble Baroness, Lady O’Grady, would limit the issuing of work notices to recognised trade unions only. However, it is of course possible that strikes can be called by recognised and unrecognised  trade unions, which can lead to disproportionate impacts on the public. It is therefore our view that MSLs must be able to be applied where a union, recognised or not, provides a strike notice to an employer.
I move on to Amendments 24 to 31 from the noble Lord, Lord Collins, and noble Baroness, Lady O’Grady. Amendment 24 looks to ensure that employers cannot name more persons than necessary to secure the minimum level of service. However, it is already recognised that employers should not roster more people than are needed to achieve a minimum service level, so that some workers can continue to take strike action if they wish to—that is the whole principle of the Bill. That is why the Bill already requires employers not to identify more persons than are reasonably necessary. This enables the employer some limited flexibility in providing for contingency to respond on the day to any operational incidents, sickness or other types of absence. In our view, the existing approach strikes the right balance and provides sufficient safeguards for workers. To go further would limit or eliminate an employer’s flexibility, which could then mean that minimum service levels—the whole point of the legislation—would not be achieved.
Amendments 25 and 26 both look to ensure that each individual is able to go on strike for at least part of the period of the strike, notwithstanding any work notice. The Government resist these amendments for three reasons. First, the number of days on a strike notice could be substantial across both short and long periods for which the union has a mandate to strike. It is therefore reasonable that some workers may need to work more than 50% of those strike days, especially if their colleagues are off sick, on leave or attending training. Secondly, these amendments would cap the minimum service level and reduce the influence of the consultation, and those who respond to it, in the setting of the minimum service level. Thirdly, Amendment 26 appears to prevent any work notice being given where there is only one day given on a strike notice, which therefore creates a loophole which could be exploited—that may have been the purpose of the amendment.
Amendments 27 and 28 look to require the employer to ignore a person’s trade union activities or use of trade union services in deciding whether to identify a person in a work notice. However, we believe the Bill already sufficiently protects against any discrimination regarding a worker’s union status when employers are preparing their work notices. The trade union activity or services that a union member may have been involved in are connected to whether they are a union member, which, as we have already said, the employer must not have regard to.
Additionally, existing legislation—Section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992—already provides a remedy for workers who are discriminated against on union grounds, and that section will continue to be applicable here. Therefore, we believe the amendment is duplicative in nature.

Lord Collins of Highbury: My noble friend Lord Woodley raised the issue of a health and safety rep, who does not necessarily have to be a union rep or  even a union member but may well be victimised because of their activity in protecting workers. Will the Minister ensure that is explicitly addressed?

Lord Callanan: I do not accept the word “victimised”. A work notice effectively says that somebody has to fulfil their whole working contract as normal, whereby they come into work and get paid for it. That is not victimisation in any conventional sense of the word.

Lord Hendy: The Minister raises Section 146 of the 1992 Act, which protects against detriment on union grounds, as he rightly says. But “union grounds” means either union membership or union activity, and Section 151 is the same protection against dismissal on grounds of union membership or union activity. Can the Minister explain why only union membership is protected in this Bill and not union activity?

Lord Callanan: It is because, as we already said, Section 146 of the Trade Union and Labour Relations (Consolidation) Act already provides a remedy for workers who are discriminated against on union grounds. That section will remain applicable here, as I said earlier.

Lord Hendy: I apologise for intervening again. The point is that Sections 146 and 151 specify membership and activities, whereas this Bill protects against discrimination on the grounds of union membership alone. If the same protection against union activity is required in Sections 146 and 151, it should be required here as well. The obvious implication, if you were arguing a case in court, is that that protection is not given under this Bill, otherwise it would have been included.

Lord Callanan: I will seek further legal advice. I am not a lawyer, but it seems to me that if the provision already exists in other applicable legislation, there is no need to duplicate that provision in another statute. I will certainly check that with the lawyers for the noble Lord.
Amendment 29 seeks to require the employers to be satisfied that the work notice does not identify more people than reasonably necessary before giving a work notice. However, as we set out in new Section 234C(5), the employer is already required to not identify more persons in the work notice than are reasonably necessary for the purposes of providing MSLs.
Amendment 30, meanwhile, seeks to require the employer to assess the equality implications of the work notice. Again, in our view, this is not necessary. The Bill does nothing to reduce the existing obligations of employers under the Equality Act 2010. As I said, there is an existing legal provision that continues to apply. There is no need to restate it.
Finally, Amendment 31 seeks to require the employer to assess the health and safety implications of the work notice and consult health and safety representatives. The Government’s view is that the current requirements in the Bill strike the right balance between the views and perspectives of employers and unions to enable a reasonable and fair work notice to be issued. As I have  said, the Bill explicitly requires that employers must consult the relevant trade union and have regard to its views before issuing a work notice.
Adding any further steps or requirements to this process will result in disproportionate and costly burdens for employers and could result in delays to the issuing of a work notice by the employer and therefore delays to minimum service levels being applied. I fully accept that this may well be the purpose of the amendment, but I hope the Opposition understand why the Government cannot accept it. Additionally, when drawing up work notices, employers must still adhere to the relevant requirements set out in existing health and safety law. That is unchanged by this legislation.
For these reasons, the Government resist these amendments.

Baroness O'Grady of Upper Holloway: I thank the Minister—I think—for that response. Many of us raising legitimate concerns about this Bill are quite disturbed that the argument for naming individuals seems to be that you have to name individual workers so that they can be threatened with the sack and that it is necessary to share those names with unions so that they can be required to take reasonable steps or face significant sanctions, including seeing the entire workforce stripped of protection against unfair dismissal.
The whole basis of this Bill seems to be born of a “command and control” school of management where you order people to work rather than seek agreement, which I think most modern management is about. That is why it is particularly frustrating for those of us who are critics of the Bill, because we know that where minimum service levels are genuinely needed for safety issues and made by agreement, whether or not those agreements have been made at the last minute—so be it; that is often the case—they are much more likely to work effectively than anything proposed in this Bill.
I could make a number of points. I thank the Minister for his point about Amazon, but I feel I have now heard very confusing messages across this Dispatch Box from him and the noble Lord, Lord Markham, so I will want to come back and clarify that.
At some point I would like an opportunity to explain more clearly the real concerns in the trade union movement about victimisation and derecognition. They are not being brought up to put obstacles in the way of this Bill. They are born of real-life experience, both of trade union officers representing shop stewards, convenors and reps who have been victimised and of many of our families who have been through this. The penalty of victimisation is so high—to have your livelihood removed is massive. I would like to pursue this area in other ways if possible, because I am sure we can convince the Minister of the sincerity of that concern and the need for genuine protection.
It is confusing why there are specific references to not selecting people on the basis of trade union membership but not extending that to those who hold trade union office and lay leadership positions.
I could go on, but I will leave the Minister with one last question. I have yet to meet a reasonable employer who wants this Bill. I have had plenty queueing up to tell me that it is wrong, immoral or maybe just unworkable and will make matters worse from a pragmatic perspective.  Can the Minister tell us of a single employer or group of employers batting for this Bill? I have yet to meet one. I beg leave to withdraw.
Amendment 22 withdrawn.
Amendment 23 not moved.
Amendments 24 to 31 not moved.

Amendment 32

Lord Fox: Moved by Lord Fox
32: The Schedule, page 4, line 37, at end insert—“(9A) Failure to comply with a work notice may not—(a) be regarded as a breach of the contract of employment of any person identified in the work notice, or(b) constitute grounds for dismissal or any other detrimental action.”Member’s explanatory statementThis amendment would protect employees from detrimental action for not complying with a work notice.

Lord Fox: My Lords, the Minister may feel a sense of déjà vu in this group, but the point is to turn the focus to the individual worker named on the work order. This is not about the union or the company; it is to amplify the effect that this Bill can have on the individual. That is why I am happy to present Amendment 32 and to support the other two amendments in the group.
Amendment 32 would protect employees from the detrimental action of not complying with a work order. The point here is to amplify that, at the moment, failure to comply with a work notice could be regarded as a breach of contract. This amendment seeks to remove that possibility. Why? Because we are looking at a list that is prepared by an employer, with no sense of what criteria that employer is using to deliver the list. The employer assesses the number of people, and indeed the names of those people, who are required to produce a minimum service level that a Minister has decided with very little recourse to Parliament. It is the individual who is at the end of that chain, over which they have no control or power whatever. That is the point I seek to emphasise here. It is the individual at the end who will carry the can for this Bill, if it becomes an Act.
I have proposed this amendment because I want to emphasise very clearly that, although the Minister says the Bill is not about wanting to sack people, it can, and because it can, it will be used in the future to sack people for not complying with work orders—work orders produced in a process over which employees have essentially no power or ability to appeal whatever. It is an absolute infringement of their freedom. That is why I propose this amendment. Under the Bill, the employee could be sacked for taking strike action that has been agreed by a democratic ballot, it having gone through all the hoops that the Government require such ballots to observe. Because the employer has decided to put them on a list, the employee cannot do that.
From everything that has come from the Dispatch Box so far, I think it will be hard for the Minister to understand this. However, it is something my colleagues on these Benches and I have discussed a lot, and which we find to be a really important element of the Bill. It is about the relationships between unions and their employers, and between the employers and the Government, but in the end, it is about a fundamental individual right, and this Bill removes that right. I beg to move.

Lord Hendy: My Lords, it is a pleasure to follow the noble Lord, Lord Fox. My Amendment 32A simply amplifies the noble Lord’s amendment and takes it a little further.
As I understand it, and the Minister will correct me if I have misunderstood the Bill, the consequence of being requisitioned and then refusing to work during a strike is that there will be no protection from unfair dismissal. As many other Members of the Committee have already said, if that is the case, bad employers—of which there are some—will use that as an excuse to be rid of people who they regard as trouble-makers, whether or not they are union activists.
The purpose of these amendments is to build in some protection. The first provision in Amendment 32A is that the employer would have to demonstrate that a work notice was sent to the worker and was received by her. Secondly, the amendment would mean that a refusal to comply with a requisition order is not to be regarded as a breach of the contract of employment, which it otherwise invariably would be. Thirdly, such a refusal would not be grounds for dismissal. Fourthly, failure to comply with a work notice would be a protected trade union activity.
This goes back to the point the Minister dealt with earlier. The Bill does not say that taking part in a strike—in particular, taking part in a strike when the worker is subject to a work notice requiring her to work on a particular day—is a protected trade union activity. In the absence of that, Section 146 of the 1992 Act, which protects against detriment on grounds of membership or activity, and Section 152, which protects against dismissal on grounds of membership or activity, simply will not apply. It is essential and necessary for the Bill to specify that membership and activity are protected, or at least that refusal to comply with the requisition notice is such a protected activity, otherwise the worker will be left with no protection at all. That is clearly contrary to the jurisprudence of the European Court of Human Rights. You cannot penalise workers for going on strike. It is simply impermissible and in breach of Article 11 of the European convention.
We cannot assume that all employers are good employers. If that was the case, we would not need unfair dismissal law at all. But for the bad employer seeking to exploit this, may I endeavour to explain the legal situation as I see it? The bad employer decides to identify a worker to be requisitioned under a work notice. That worker refuses to comply with the notice, and the employer then sacks them. They are sacked on legally solid grounds, because striking is in fundamental breach of contract; it is regarded by law as a repudiation  of the contract of employment. That means that avenues under the contract, such as the right to bring a grievance, disappear as the contract ends. Likewise, there will be no claim for unfair dismissal, because, unless I have misunderstood the Bill, that is the effect of the provisions, and there will be no remedy for breach of contract. If the worker goes to a court and says that she was dismissed improperly by her employer, she will be met by the employer’s answer that she was in fundamental breach of her contract and so cannot complain that the employer breached it.
I can see no legal avenue whatever for a worker who refused to comply with a requisition order and has been sacked instantaneously by their employer. Therefore, with the greatest respect, perhaps the Minister might reconsider his earlier answer when he said that there were some remedies or avenues available.

Bishop of Manchester: My Lords, I speak in support of Amendment 41 in the name of the noble Lord, Lord Collins, to which my right reverend friend the Bishop of London has added her name, and the other amendments in this group. My right reverend friend regrets that she is unable to be in her place today. In fact, given that she is at this very moment leading a debate among fellow bishops on the subject of sexuality, I think she would much rather be here in your Lordships’ House alongside me. Therefore, in supporting these amendments, I wish to include a number of points which she would undoubtedly have made had she been here.
As we have heard earlier today, including from the noble Lord, Lord Allan of Hallam, proportionality is a central principle of law. I hope that noble Lords will allow me to draw attention from these Benches to an important biblical perspective on that topic. I suggest we should respect the limitations set by Moses over 3,000 years ago in the Hebrew scriptures. When Moses laid down a simple rule,
“an eye for an eye, a tooth for a tooth”,
he was not advocating mutilation as the proper means of punishment. He was making the crucial point that the punishment must never exceed the gravity of the offence.
Dismissal for failing to comply with an instruction to work on a strike day is, in my view, the view of the Joint Committee on Human Rights, and, I suspect, the view of many others, grossly out of all proportion. I also wonder how enforceable it would be. Were I a worker issued with such an instruction, the stress I would suffer in consequence could quite likely render me unfit to turn up to work on the day—and, as I trust your Lordships have begun to recognise, I am a fairly tough nut. Will the Minister therefore agree to explore, before we reach Report, whether some lesser maximum penalty would be more appropriate?
Moreover, as the Royal College of Nursing has said, sacking workers for failing to accede to such an instruction to work
“would exacerbate severe nursing workforce shortages”
that we already face. Nursing vacancies are already high—is it more than 43,000? That is a 10% increase over the last 12 months. There are similar shortages elsewhere in the public sector.
The first day in Committee highlighted major unresolved questions about the application of the Bill. The breadth of the roles under the titles of “health services” and “transport services” is huge. Providing minimum service levels that are of the same urgency, and providing for penalties of the same severity, for those who drive blue-light emergency vehicles and the driver of my local 98 bus is absurd.
The amendments in this group would continue protection of employees’ rights and would protect our workforces from further exacerbation of already severe shortages. I urge the Minister to accept them.

Baroness Chakrabarti: My Lords, it is a great pleasure to follow the right reverend Prelate. We have already discussed at length the proportionality concerns about the minimum service level agreements being imposed per se, but now we get into the sanctions and consequences for trade unions in what will follow, but also for individuals. We must now talk not just about the vital human rights principle of proportionality that we discussed before but about the vital principle of non-discrimination.
This gives me the opportunity to reflect on an earlier exchange between the Minister and my noble friend Lady O’Grady of Upper Holloway. There was a dissonance about this concept of victimisation. As I understand it, the Minister was saying, “For goodness’ sake. It’s not victimisation to say that there needs to be a minimum service level agreement to protect the public, and therefore there have to be work notices”. However, what perhaps the Minister did not hear or understand is that when you give employers the power to pick and choose between individual employees, we are opening up the Pandora’s box of abuse of power. When we legislate in your Lordships’ House, we have to guard against potential abuses of power.
If employers, scrupulous or otherwise, are allowed to pick and choose between individuals, some people will never be on the list but other people will be, and sometimes the people will be selected for that list on grounds that include their race, sex, sexuality and possibly even their role within trade union activity. I think that is the point my noble friend was trying to make to the Minister, and this is the power that is being handed to individual employers, in contrast with years of struggle for protection against discrimination, including discrimination on the grounds of trade union activity as well as membership.
If, as I fear, the Minister will not pause the Bill or introduce greater parliamentary protection before the powers can be triggered in the first place, please will he look at the powers given to individual employers over groups and particular employees in the workplace, because it is invidious and, I think, very dangerous?

Baroness Noakes: My Lords, it seems to me that the noble Lords, Lord Fox and Lord Hendy, are finding yet another way to try to deprive the Bill of any effect. In their own ways, they are trying to make it entirely voluntary to take part in the provision of minimum service levels, if requested by an employer. That runs completely counter to the policy intent of the Bill.
If noble Lords think that the Bill needs to be modified in some way to reflect their concerns, it is incumbent on them to produce amendments which find a practical way through that. To simply, in effect, make compliance with a minimum service level work notice voluntary is unacceptable in the context of the Bill. Although I understand the points that the noble Baroness, Lady Chakrabarti, makes, those issues are already covered by discrimination law. The concern she has about being selected on the grounds of sex, sexual orientation or race is already covered by discrimination law and does not need to be protected again in the Bill.

Lord Fox: Does the noble Baroness accept that in Committee, there are two sorts of amendments: there are amendments which are very practical and designed to be used as a template for changing the Bill, and there are probing amendments? I point out that I made it very clear that the latest two groups I was speaking to were probing amendments. On that basis, I think her criticism is invalid.

Baroness Chakrabarti: I am grateful to the noble Baroness for engaging so specifically and constructively in the debate, but I do not think she appreciates just how difficult it is, even under the present law, for people to go to a tribunal, with or without the assistance of lawyers or their trade unions, to demonstrate that they were picked on for one of these reasons. Now, in this Bill, a specific protection against unfair dismissal is being removed. An employer will say, “No, no, X, Y or Z was picked for this other reason. They are essential to the service”. It just happens to be the noble Baroness, Lady Chakrabarti, who is essential to the service every time and not, for example, my noble friend Lord Hendy, who of course is the expert. If I am always essential to the service and he is not, it will be very difficult for me to demonstrate that it was discriminatory, when the whole purpose of the Bill is, as the noble Baroness said, to remove protection from unfair dismissal.

Baroness Noakes: The purpose of the Bill is not to remove protection for unfair dismissal; the purpose of the Bill is to ensure that minimum service levels can be guaranteed for those who rely on the services, and we are trying to find practical ways through that. I was inviting noble Lords to find ways did not simply rip the heart out of the Bill.

Lord Hendy: I just say to the noble Baroness that there is nothing wrong with conformity being voluntary. The whole basis of the ILO jurisprudence is that minimum service levels and requisitioning should be agreed voluntarily between the unions and the employers. In most of the countries of Europe where they have minimum service levels, volunteers are sought to provide the minimum service. That is also true in this country. We have been hearing for days about the local agreements that are reached in all the six sectors identified here.
That is done on a voluntary basis, and the people who do the work volunteer to do it. They speak to their union, and the union says, “Somebody has to do  it; you’re going to do it”, and they say “Okay, fine if that is the price of having the industrial action and bringing pressure to bear to maintain our standard of living, that is the price I am prepared to pay”.
There is nothing wrong with voluntariness. It does not detract from the rest of the machinery of the Bill in setting minimum service levels and issuing work notices, if that is really what the Bill is intended to do.

Baroness O'Grady of Upper Holloway: My Lords, I will speak to Amendment 41 in my name and the names of my noble friend Lord Collins and the right reverend Prelate the Bishop of London, and support the amendments tabled by the noble Lords, Lord Fox and Lord Hendy.
Many of us agree that one of the most disturbing features of the Bill is that it hands employers powers to name individual workers in a work notice and potentially force them to work against their will, through a strike, without their individual consent or the agreement of their union—or face the sack. Many employers in the public and private sectors have told us very clearly that they do not want this authoritarian power because it would sour industrial relations. If the Bill is enacted, they fear that they would come under undue political pressure to exercise that power. The publication of WhatsApp messages, as I mentioned previously, between the then Health and Education Ministers revealed that at the very same time as they were publicly praising, clapping and thanking key workers for their efforts during the pandemic, privately they were describing those same workers and their unions—unions are made up of workers—with contempt.
The noble Lord, Lord Callanan, has often sought to reassure us by saying that he hopes the powers will never be used and that there would be no undue pressure. However, I am sure that he would agree—I might even get a smile out of him—that if Gavin Williamson was Education Minister today, on the evidence of those WhatsApp messages, he would be straining at the leash to ensure that academy schools pulled that trigger. That is the fear.
The Government have continually cited France, Italy and Spain as countries that also provide minimum service levels. However, unlike in the UK, in each of these countries the right to strike is a constitutional right. Perhaps the noble Lord can also confirm which of these countries, if any, have provided a blanket power to remove protection against dismissal for individually named striking workers? I submitted a Written Question on this subject, but the response I received did not answer the Question. What is more, it took 15 days rather than the expected 10 not to answer my Question. In fact, the answer, as we have heard, is zero. None of those countries does that.
Can the Minister also explain and justify a gaping hole in the consultations issued on the Bill so far? Those consultations failed to ask whether respondents agree with the Government that it is acceptable to sack individual firefighters, ambulance staff and rail workers if, for example, for reasons of conscience they do not comply with the work notice. Could it possibly be that this is not in the consultation because Ministers know  that they will not get the answer that they want? Most fair-minded people find the idea of such sackings abhorrent. The sacking of individually named workers who refuse to comply would be catastrophic for workers’ rights, staff morale and industrial relations in this country. I remind the Minister that NHS job vacancies currently stand at over 133,000 and that 17% of newly qualified teachers leave within two years.
Not so long ago, following a public outcry about what happened at P&O, Government Ministers condemned its scandalous behaviour, and rightly so. Ministers said then—I quote from the 24 January government press release—that unscrupulous employers
“must not use threats of dismissal to pressurise employees into accepting new terms”.
But the Bill provides powers to do exactly that: to pressurise key workers into accepting terms under threat of the sack. These key workers’ heroic work through the pandemic has earned the public’s respect and gratitude. One firefighter was moved to write a letter about his experiences. He says that he has been proud to work for the service for 15 years, including being deployed to Nepal following the devastating earthquakes in 2015; that he and his colleagues have a can-do attitude and have provided emergency cover voluntarily when needed through industrial action; and that they entered the service because they want to help people. He warns against this legislation and says that it is unnecessary, given that arrangements for emergency cover are already in place, and says that Ministers
“can’t simply legislate away the depth of anger and frustration we feel about how we’ve been treated. The Bill could lead to individual workers like me being sacked for taking part in legal and democratically decided industrial action over issues which are genuinely of concern to society in general.”
Taking the power to sack workers whose names are chosen unilaterally by employers, as sanctioned by Ministers, is understandably perceived as deeply provocative. If this firefighter refused to comply with the work notice, does the Minister really imagine that his colleagues would stand by and let him be sacked? Some argue that the Bill is intended to be provocative but, if so, that would be foolish. The provision to sack workers flies in the face of all industrial relations common sense and any sense of human decency.
I know that we are covering the same ground, but it is not just named individuals who could be vulnerable to the sack, as the Joint Committee on Human Rights made clear in its report:
“We find it hard to see how it is compliant with Article 11 ECHR to expose any participant in industrial action to the risk of dismissal simply because a trade union fails to take unspecified ‘reasonable steps’ required in respect of those subject to a work notice.”
I will not go on, but I look forward to the Minister's response—or, better still, an indication that this Government will remove that right to sack striking workers from the Bill.

Lord Callanan: My Lords, I thank all noble Lords who have contributed to this debate. At the risk of provoking further interventions, I will start by replying to the noble Baroness, Lady Chakrabarti. I do not know the legal definition of victimisation, but her understanding of it is clearly different from mine.  I would define it as something like “subjecting an individual to degrading, unfair treatment”. In effect, a work notice says to an employee, “You fulfil your contract, as has been previously agreed, as normal. You come into work, do your normal contracted job and get paid for it.” In any definition that I understand, that is not victimisation. Obviously she has an alternative view, but I do not believe that it would come under the definition.
I will directly address the point by the noble Baroness, Lady O’Grady. I have said it before and will say it again: this legislation is not about sacking key workers. Let me be very clear about that. She inquired about the outline of the Bill: it is about protecting the lives and livelihoods of the public by enabling minimum service levels to be applied on a strike day. If people comply with the legislation, then there is no question of anybody being sacked on the basis of it.
This group of amendments seeks to ensure that no detrimental action could be taken by an employer against persons who are named on, but then fail to comply with, a work notice. There would be no consequences for participating in a strike despite being named on a work notice. The whole intention of these amendments is not to achieve a balance between the ability to strike and the rights and freedoms of the rest of us to go about our normal daily business—to get an ambulance, to attend the health service or to have a firefighter come to put out a fire in my property. This is about ensuring that strike action can continue with no consequence whatever and with no regard as to whether a minimum service level will be achieved. That fundamentally cannot be accepted by the Government.
For a minimum service level to be achieved, it strikes me as obvious that enough people need to attend work and therefore workers need to be appropriately incentivised to do that. The legislation achieves this by removing the automatic protection from unfair dismissal where employees participate in strike action despite being named on a work notice. While it is at the discretion of employers rather than the Government as to what, if any, action is then taken against employees in those circumstances, we think it vital that the Bill equips employers to manage instances of non-compliance, just as they would in any other case of unauthorised absence, to enable them to achieve that minimum service level. As my noble friend Lady Noakes observed, employees retain all their existing protections against discrimination—a very good point that further reinforces why these amendments are not required.
Overall, we believe that the approach in this legislation is fair and reasonable and ensures that there is the balance, which we have talked about so often, between the ability to strike and the rights and freedoms of everyone else to go about their daily business and use essential public services. Removing the ability for there to be any consequences whatever for failing to comply with a work notice would likely lead to strikes being more disruptive, as we have seen, when compared with the level of service that employers would be able to provide by applying a minimum service level that allows for these consequences.
Finally, there is a point of detail. Amendments 32 and 32A, if implemented, would cause a significant legal conflict with Part 2 of the Schedule, which makes amendments to the Trade Union and Labour Relations (Consolidation) Act 1992 to make clear that there is no automatic protection from unfair dismissal for an employee who is identified in a valid work notice but participates in the strike contrary to that work notice.
In conclusion, I resist these amendments on the grounds that they seek to sustain or increase the disproportionate impact that strikes in these key areas can have on the public as a continuation of the status quo, a continuation of the public being disproportionately impacted by strikes and a continuation of lives and livelihoods being put at risk by those strikes. Therefore, I cannot accept these amendments.

Lord Fox: With each group of amendments that passes, I get the impression that the area of carpet between me and the Minister is getting larger. The differences are getting larger rather than smaller, which is disappointing because sometimes in Committee they can be narrowed, but I do not get that sense. In describing the change in a person’s contract so that on one day they are able to strike with legal protections and on the next day that contract is unilaterally changed, I do not have to use the word “victimisation”. I can use some other word, perhaps “unfair” or “wrong”. That is the fundamental difference between me and the Minister, and that is what is causing the carpet to expand. Acknowledging that this was a probing amendment, I beg leave to withdraw the amendment.
Amendment 32 withdrawn.
Amendments 32A and 32B not moved.

Amendment 33

Lord Collins of Highbury: Moved by Lord Collins of Highbury
33: The Schedule, page 5, leave out lines 9 to 22Member’s explanatory statementThis amendment is to probe the level of protection of unions when involved in industrial action.

Lord Collins of Highbury: My Lords, I suppose I had better start by making clear that I am probing these relevant clauses because I do not think what is set out in the Bill is clear. I also think it is important that we set out where we are on statutory protection for unions. We are certainly probing what could be considered “reasonable”—a word that I find extremely difficult without any further description in the Bill.
Let us start with some fundamentals here. In Great Britain, individual workers who strike, unless otherwise protected, are in breach of their contractual obligations. In the absence of other legal protections, trade unions that organise strikes would almost certainly commit a tort, such as inducement of a breach of contract, and could be subject to damages and injunctions. Currently, unions are protected from liability, and have immunity in the acts that we often talk about, by Section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992, provided they comply with various legal   requirements such as the rules on strike ballots. Those requirements have been quite onerous in many respects. Perhaps they had the opposite effect to what was intended, because I assure the Minister and other noble Lords that once a strike mandate has been achieved through all those ballots, people who make that decision are then absolutely committed to it, while perhaps there might have been a bit more leeway in the past.
The fact is that once that mandate has been achieved, the union is protected. Under this Bill, they could lose that protection despite going through every legal hurdle set out in the 1992 Act. It is unacceptable for unions to be faced with a position where they are obliged to ensure that members who vote for industrial action do not take part in that action. It is asking them to undermine their own democratically agreed activity. A union could face an injunction or be forced to pay damages if it is not deemed to have taken reasonable steps to ensure that all its members identified in the work notice do not take part in the strike action. The cap for damages was raised to £1 million last year, which could be crippling for any union deemed to have breached what is vague legislation. It could have a chilling effect on the willingness of trade union members to exercise their fundamental right to strike.
We are trying to probe—and I am sure other noble Lords will participate in this debate—exactly what constitutes a reasonable step, as unions have been left uncertain of their responsibilities. My noble friend Lord Hendy has probing amendments to try to clarify what should or should not be a “reasonable step” and how you can work out some sort of definition. I hate to use hyperbole, but it is an outrageous infringement of trade union freedoms to force union members to cross picket lines when strike action has been democratically endorsed by members.
It is also a significant departure from the industrial relations framework in the United Kingdom. I come back to my noble friend Lady O’Grady’s point: I have yet to hear about a single employer, particularly in the six sectors we talk about. In some of them, particularly the nuclear industry, there are already very strong voluntary agreements. We have heard the noble Lord talk about the ambulance service, but it is all those areas. The NHS Providers are extremely concerned about the impact this will have on the very thing that we are saying that this legislation is designed to achieve. It will impact on voluntary agreements. Employers say, “I want a volunteer. I don’t want to force someone to do something, because when I do that they’re not going to be doing the job we all hope they would.”
This legislation has the complete opposite effect from what the Minister is suggesting. When you look at the comments I have already made about the rail industry, it is clear that this is going to aggravate industrial relations and prolong disputes, not minimise them. I hope the Minister can give us a clear indication of what he thinks are reasonable steps for a union to take in these circumstances.

Lord Faulkner of Worcester: I should advise the Committee that if this amendment is agreed, I will not be able to call Amendments 34, 34A or 35 for reason of pre-emption.

Lord Hendy: My Lords, I shall speak to Amendments 33 and 34. I share my noble friend Lord Collins’s outrage at this proposal. It is one thing to set minimum service levels and another thing to specify requisition notices by way of a work notice, but to require trade unions to organise themselves so as to break their own strike is a step that has never before been taken in this country and, so far as I am aware, is not required in any other country in Europe.
I remind the Committee that the provision in the Bill that we are seeking to discuss says
“the strike is not protected as respects that person’s employer if … the union fails to take reasonable steps to ensure that all members of the union who are identified in the work notice comply with the notice.”
So the obligation on the union is to
“take reasonable steps to ensure”
that all members comply with the notice. That is a very heavy obligation to put on unions. In principle it is objectionable, but the extent of it makes it even more so.
I cannot develop the objection on principle further, but there are some practical considerations here that perhaps the Minister can consider. We are envisaging a work notice given by the employer to the union, setting out names of a number of workers who are required to work and the work that they are required to do; we remind ourselves that, at the end of the Bill, it is said that that can be on a daily basis. If you have one employer and one strike affecting a small number of workers, that may be a relatively easy obligation to comply with.
However, I remind the Minister that the Bill applies to the education service. I have just looked up the Office for National Statistics site, which tells me that there are 32,226 schools in this country—although in fact I understand from the National Education Union that it balloted only some 24,000-odd of those. Think of that: even if we assume that only half the employers decide to supply a work notice, on a daily basis the unions are going to get 10,000 or 12,000 emails with a list of teachers who are required to be in. The union then has to set that list against its own membership database in order to determine which of them are members of the union, and then has to communicate with each one of them in order to demonstrate that they have taken “reasonable steps to ensure” that those members comply with the notice. This is just nonsense, is it not? It really must be.
Part of the problem is that the Bill does not define “reasonable steps”—that will be left to the courts to determine. I have done enough of these industrial action cases over the last 40 years to know that employers’ barristers—all friends of mine—are going to use every argument in the book to demonstrate that the union has not taken the “reasonable steps” that the employer says it should have. One of those, of course, will be to say that the union did not threaten to discipline any members who refused to comply with the notice or expel anybody, and to ask what it did do.
All of this is against the background of a union having committed itself, after a vote in favour by the members—a vote which meets all the thresholds—to advancing a strike. All the publicity that goes out from the union’s website and journal and in emails to members  will say that it is calling a strike on, say, the 24th of the month, starting at midnight, and calling for members to join the strike, go on the picket line and participate—this is their fight and their struggle for better pay and conditions, or whatever it is. However, the union has to demonstrate that it identified those members appearing on a work notice in order to show that it took reasonable steps to ensure that those members complied. This is simply not realistic, and it is not acceptable.

Lord Fox: Following on from the noble Lord, Lord Hendy—I apologise for butting in—it is not quite as simple as that. What happens if, of the employers list, 30% of them go off sick? Who is accountable for filling in the gap? Is it the union? Does it have to take “reasonable steps” to find substitutes? The Minister shakes his head to say that it does not—that is good. Perhaps when he replies he can explain what happens in the event of a significant number of those people going off sick.
I will not add any more, as I am sure there will be plenty from the Benches of His Majesty’s Opposition.

Lord Woodley: My Lords, I support these amendments and want to complement and supplement the contribution of my noble friend Lord Hendy. As he said, these amendments deal with the fundamental issue of protecting trade unions from being forced to act against their own interests during a legally authorised dispute.
Like my noble friend, I find one of the most appalling parts of this skeletal Bill the requirement for trade unions
“to take reasonable steps to ensure”
members comply with a notice to strike-break. Ensuring compliance is the role of the trade unions, according to the Bill. What on earth does that mean in practice? There is nothing in the Bill to guide us here. How can unions be expected to police their own members who, after all, are simply ordinary workers who voluntarily joined the union? They pay their subscriptions and expect their union to support their democratic decisions, especially during disputes.
How is compliance normally ensured? How does the state ensure that people comply with its laws, for example? Again, as my noble friend Lord Hendy said, it is by threat of sanction or some kind of punishment. Is that what is meant here? Are trade unions supposed to threaten their own members with some kind of punishment if they do not cross their own picket lines? It is ridiculous. It is certainly not clear in the Bill whether that is or is not the case. But you can bet one thing: the bosses will see it that way.
What if the bosses or, ultimately, the courts decide that this punishment is not harsh enough? What if it is decided that the union did not take so-called “reasonable steps” or threaten punishments harsh enough to ensure that its members complied with the employer’s work notice? What then? Well, the whole strike loses legal protection, as does the union. What does that mean? The Minister in the other place was very clear in his letter to the Joint Committee on Human Rights when he said that all workers would
“lose their automatic protection from dismissal for industrial action”.
In short, they could face the sack. There is no dispute about what was said in the other place.
However, the Minister justified this by comparing it to “balloting requirements” for unions—if they are not satisfied, the whole strike is unprotected. But, with the greatest respect, balloting requirements are black and white and very clear: it is in law and practice whether a union has satisfied them, and, if a union messes up, as unfortunately unions sometimes accidentally do, it admits it and reballots. But no members are put at risk; they are not threatened with discipline or the sack.
But “reasonable steps”, open as it is to interpretation, is not at all black and white, and with nothing in the Bill spelling out what is meant by this, the unions are flying blindfold while their members are held hostage to fortune. For example, what if a worker refuses to go to work because other members of their family are on strike? If a worker goes on the sick—not “is on the sick”, Minister—how can the union be held responsible in such circumstances? Not only can all workers on strike be fired, but the union itself could be fined vast sums of money and sued for damages, and all for not being ruthless enough in ensuring its own members’ compliance with a work notice designed to undermine its own legally balloted strike action. With the greatest respect, this is unacceptable, and all of us must fiercely resist it. This restriction strikes at the core of trade union activity and, together with the lack of clarity in the Bill on what counts as “reasonable steps”, it is therefore a breach of Article 11 of the European Convention on Human Rights, as my noble friend Lord Collins mentioned. I urge all Members to support these amendments.
I have another basic question for the Minister: what exactly is meant by “reasonable steps” to ensure compliance? Is it a stern word on the picket line, or down the pub? Maybe it is naming and shaming members who are nervous about strike-breaking—or is it simply the union disciplining workers if they do not comply? What is a reasonable step? We need clarity, or we are flying blindfold.

Baroness Chakrabarti: My Lords, this group gives me the opportunity to speak to the noble Baroness, Lady Noakes. Earlier, she encouraged the Committee to be constructive when we debated whether an amendment was probing or constructive. Given the gestures from the Minister from a sedentary position, it is clear that, even if the Bill passes, there is room to specify these reasonable steps and new duties upon trade unions. That is my attempt to meet the noble Baroness half way and be constructive about a Bill that I think is hugely disproportionate.
With the greatest respect to my noble friend who just spoke, these amendments do not just expose a breach of Article 11, on freedom of association; they quite possibly expose a breach of Article 9, on freedom of conscience. I am afraid there are no right reverend Prelates here at the moment, but it is as if we were to say to the bishops, “We live in a modern, diverse democracy, even though we have an established Church, but it is now your obligation to actively encourage divorce and abortion.” Clearly, that would be ludicrous, and it is equally ludicrous to be saying to trade unions not only that, as indicated in Amendment 34, they should try to make their members aware of the legislation and of work notices, but that they should ensure  compliance as well. The Government are making employers in relation to these public services the policeman for the Government, but it is a step too far to make unions the policeman for the Government as well—not least in the context of disputes which will continue to be lawful under this proposed legislation, but just some people will have to go to work.
Hence, I commend in particular Amendments 34, 34A and 35, which highlight that knowledge is one thing but ensuring compliance is another. They demonstrate at length that unions should not be disciplining their members for not going to work, and that picketing has to remain perfectly lawful, not least because most workers, we hope, or many workers, will still be entitled to go on strike, notwithstanding the minimum service levels and the specific work notices. The Bill needs to specify what is reasonable and what is required of trade unions.

Baroness Noakes: Does the noble Baroness agree that “reasonable steps” is a formulation used in a number of legislative formats? It has not been defined further on those occasions when it has been used in order to provide the flexibility to allow for the situation to be judged on its individual circumstances and, indeed, to allow for technological developments. What would have been reasonable, for example, in communication with affected workers 10 years ago could be quite different now. If we take the example of the duty to prevent bribery, “reasonable steps” is not defined in law and that is a virtue of the law, because it allows the situation to be judged at the time. That is why the Bill takes this pragmatic approach.

Baroness Chakrabarti: I totally agree, by the way, with the noble Baroness that there are areas of our common law in particular, and some statutes, where the inclusion of the adjective “reasonable” by itself will do the trick. I disagree that it is appropriate here because we are asking unions to do something that is inherently counterintuitive to their raison d’etre, which is to organise workers, in extremis, to go on strike. If one is saying to the union, “You are now having to push against the grain of your whole existence, the existence of your organisation, and your freedom of conscience and your association, which you are entitled to under the convention and the ILO”, and if one is pushing them in the opposite direction, one has to be very specific and proportionate about the nature of that totally counterintuitive duty.

Baroness O'Grady of Upper Holloway: If I can elaborate even further, it is not necessarily the issue of being counterintuitive or not; if there is a voluntary agreement, both parties enter into that voluntary agreement with good faith. So if, as we have discussed many times before, safety is genuinely at risk and there are life and limb agreements, unions and employers work incredibly closely together to secure the consent of individual workers, and issue them with what we call exemptions to go across that picket line. That can all happen. But as soon as you introduce the law and remove that requirement for agreement, why is it our responsibility to make this work? It is not our responsibility; it is the employer’s responsibility. You cannot have it both ways.  If we are going to have a voluntary agreement, we will do our best to honour and make that voluntary agreement work. If the state intervenes and dictates to workers under threat of dismissal, it simply will not work.

Lord Callanan: My Lords, I am grateful to those who have contributed to the debate.
It should go without saying that, to achieve a minimum service level, employers, employees and trade unions all have a part to play, and the Bill makes clear what those respective roles are. As many Members have quoted, unions are required to take “reasonable steps” to ensure that the union members named in the work notice comply with the notice. If they do not, they will lose protection from legal claims.
In response to the noble Lord, Lord Woodley, I say that there are a range of steps that trade unions could take, and what is considered reasonable can depend, as my noble friend Lady Noakes made clear, on each specific situation. First and foremost, a trade union should not call a union member identified in a work notice as required to work on a particular day out on strike that day. The trade union could also encourage those individual members to comply with the work notice and make it clear in its general communication with workers that, where members are named in a work notice and therefore required to work on a particular day, they should work on that particular strike day.
Before turning to the individual amendments, I will respond to the question from the noble Lord, Lord Fox, about what would happen if a number of the workforce are sick on the day of the strike. As I indicated to the noble Lord from a sedentary position, the responsibility of the unions is to take “reasonable steps”, as it says in the Bill. If union members named in a work notice are off sick, it is not the responsibility of the trade unions to find other members to take their place; it is the responsibility of employers to ensure that enough work notices are issued to fulfil that minimum service level.
Amendments 34 and 34A seek to diminish the responsibility of unions to take reasonable steps to ensure that their members who are named on a work notice actually attend work rather than participating in strike action. These amendments would remove any obligation on the trade unions to notify their members of the need to comply with a work notice and not to take part in the strike, which, in my view, would reduce the likelihood that a minimum service level will be maintained or achieved. Therefore, the Government are unable to accept them.
Amendment 33 goes further and seeks to ensure that unions have no responsibility whatever for ensuring that their members comply if they have been named on a work notice. It also ensures that there are no consequences for failing to meet that responsibility. I submit that that is an attempt to disrupt the balance between the ability to strike and the rights and freedoms of others, and therefore the Government cannot accept the amendment.
If a union member does not cross a picket line when identified on a work notice, this will of course negatively affect the employer’s ability to achieve the minimum service level at all. The picket line is usually  a critical place for a union to exercise persuasion over its members, and we have seen some egregious examples of that. However, the Bill and the achievement of minimum service levels would be substantially undermined if the union’s obligations did not extend to picketing, and therefore we cannot accept Amendment 35.
The responsibility of the union to take reasonable steps is a continuing one, because the impact on the public is the same if a minimum service level is not achieved, whether or not that results from picketing activities. Therefore, the Government cannot accept these amendments, which would significantly reduce the responsibilities of trade unions. Our view, which is reflected in the legislation, is that they need to play their part in ensuring that essential services continue during strikes. As always, we encourage unions to act responsibly and to fulfil their statutory duty that will be established by the Bill if it becomes law. I therefore hope that the noble Lord, Lord Collins, will withdraw his amendment.

Lord Collins of Highbury: The simple fact is that the Minister tries to keep repeating a narrative that the Government are on the side of the public and, somehow, the Opposition are not. Actually, that is not the case, and, as I said before, the public will not be fooled.
I am glad that the noble Lord, Lord Markham is here, because we had a discussion about the six sectors. There was a manifesto commitment on transport, but then that disappeared, especially when an impact assessment said that the law would not work and would prolong disputes, with greater impact on the public, so it is not worth doing. Now, we have had discussion about six sectors, a number of which have very strong voluntary agreements that work. Employers have told us that where people volunteer to do something, against their conscience, which is what we are talking about, it will be more effective. In the health service, NHS Providers is telling us that that is what it wants to do: it wants to ensure that people volunteer and that there are proper cover arrangements. What we are moving to here is compulsion, penalties and dismissal. It will have the complete opposite effect to what the Minister has said.
The problem about “reasonable steps”, as the noble Baroness, Lady Noakes, has said, is that it is often up to courts to define and interpret. It is used in our common law. I have been distressed at times at how courts have deemed something to be reasonable, especially in the context of trade unions. The Minister has given us an example, whereby the reasonable step is for the union to communicate—simply to communicate. If the union provides notices that there will be minimum service levels, that reasonable step should include a range of communications. The Minister therefore excludes the idea that there is a requirement to insist, to discipline or to take other measures that may be deemed reasonable.
I come back to a fundamental point. There is another issue here: unions are able to organise strikes, but not because they have constitutional right to do so in this country—they do not, sadly. That is the difference from European countries, where they do have that  constitutional right and so the question of minimum service levels is something that is an exception to the constitutional right. The Minister talked about incentives in an earlier debate. Often, it is the statute that says that you must incentivise people to work in those circumstances and not to exercise their constitutional right to strike. We do not have that here.
It is extremely worrying that a properly constituted, legal strike could end up being deemed illegal because a court decides that a union did not take “reasonable steps” for a small minority of its members—well, possibly a small minority, but who knows? The problem is that we do not know what minimum service levels are in different circumstances; we do not know whether it is 20%, 30%, 40% or even—in the case of some of the emergencies that we have been talking about—100%.
This comes back to a fundamental constitutional position. This is a skeleton Bill that is asking Parliament to give Ministers powers that will impact hugely on rights that have been fought for over the last 120 years. I am certainly not happy with the Minister’s response. I have no doubt that he will continue with his narrative, but it does not provide the answers to these fundamental questions that we are searching for. Having said that, I beg leave to withdraw the amendment.
Amendment 33 withdrawn.
Amendments 34 to 36A not moved.

Amendment 36B

Lord Collins of Highbury: Moved by Lord Collins of Highbury
36B: The Schedule, page 5, line 26, at end insert—“(1A) At least one month before making regulations under section 234B, the Secretary of State must publish indicative minimum service levels for any service that the regulations will provide for.”Member’s explanatory statementRequires indicative minimum service levels for any service to be set out before regulations can be made for that service.

Lord Collins of Highbury: This is going to be relatively easy to deal with, because the Minister has already given us an answer on the previous group. Actually, the answer he gave us is the reason I have separated out this amendment—I think it reflects something else that committees of this House have been extremely concerned about, certainly in the two reports that my noble friend Lord Hendy referred to earlier. When our Delegated Powers and Regulatory Reform Committee reports, it reports in a timely way that ensures that when Parliament and this House consider legislative proposals, we are informed. That information is also governed by the Government’s response.
The Bill has gone through the Commons stages with very little scrutiny and lands up here. We have three detailed reports on this piece of legislation, all of them fairly critical, as in paragraph 23 of the Delegated Powers and Regulatory Reform Committee report. There is only one example of what a minimum service level might contain, which is the service in the transport sector, so everything else has been completely ignored. There are no examples; there is nothing we can assess to see how these powers we are being asked to give to  Ministers may be used. The Delegated Powers Committee’s response is that if they do not tell us, we should not give them the power. When are the Government going to properly respond? I insist that they respond as quickly as possible, well before any sort of timetabling for Report. It is fundamental to our democracy that the Government respond to the requirements of Parliament. It is outrageous that they have not done so already. I beg to move.

Baroness Chakrabarti: My Lords, this is neither a wrecking amendment nor a probing amendment; it is a most reasonable amendment. Why? Because some of us who have constitutional concerns about skeleton Bills and Henry VIII powers do so because, even with affirmative procedure, Members of Parliament and Members of your Lordships’ House are not able to amend secondary legislation, unlike Bills. The ability to improve the legislation just is not there. If that is going to be the case here, because we cannot persuade Ministers that these matters, if necessary in extremis, should be dealt with in primary legislation, what are we going to do instead?
If there is to be any possibility of improving minimum service level agreements and the regulations that impose them, there needs to be a statutory amount of time on the face of the primary legislation so that parliamentarians, while they will not get the process they get when a Bill goes through Parliament, will know that they will have at least a month to look at what is proposed and then try to speak to Ministers, write to Ministers and raise questions in each House. That, in some small way, would be an attempt to compensate for the fact that this is not primary legislative procedure with the ability to table amendments, divide the House and so on. This seems totally reasonable to me and a constructive amendment in the face of these Henry VIII powers that have caused such concern to the various august committees and the noble and learned Lords who normally sit with the noble Lord, Lord Hogan-Howe—he is a bit lonely at the moment. It is totally reasonable.
I cannot understand what the objection could be to just being clear, even if informally, that there will at least be this amount of time to be able to improve the regulations. I think Hansard will record that the Minister, in answer to me on a previous group—it may have been a slip—said that Parliament can improve the regulations. Actually, it cannot, but by this kind of stipulation it could, at least informally, make its attempt.

Lord Fox: My Lords, this is something of an hors d’oeuvre for the next group, so I will save my comments on this issue—although I thoroughly agree with the noble Baroness—for Amendment 37, which I consider to be a meatier version of the same issue. This is clearly starting the move to the territory where we give Parliament the opportunity at least to scrutinise, if not amend, what comes before it. We will come to more of that in a few minutes.

Lord Hendy: My Lords, at the risk of saying what I said earlier, if this amendment is not accepted by the Government, that presents a problem to the whole House as to what is to be done about Bills that do not conform to the elementary requirements of  various committees, where detail is not published in the Bills but reserved to regulations. That problem will have to be confronted if the Government are not prepared to accept this very modest amendment, as my noble friend Lady Chakrabarti put it.

Lord Callanan: I thank noble Lords for their contributions to this debate. To start with the question from the noble Lord, Lord Collins, about the Government’s response to the reports from the Delegated Powers Committee, the Constitution Committee and the Joint Committee on Human Rights, I am happy to confirm that I expect to be able to respond to those reports before Report.
This amendment tabled by the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, requires indicative minimum service levels to be set out before regulations can be made for that service. The Government recognise the importance of relevant parties having sight of a minimum service level before it is applied. That is why Secretaries of State must consult on minimum service level regulations and why Parliament will have an opportunity to contribute to the consultation and scrutinise those regulations, which are subject to the affirmative procedure, as I have said before.
The effect of this amendment is superfluous, given that all parties will be able to know the proposed minimum service levels once regulations are laid in the usual way. This approach ensures that the implementation of MSL is not significantly delayed, thereby not extending the disproportionate impact that strikes can have on the public. I am sure that the noble Lord, Lord Collins, and the noble Baroness, Lady O’Grady, will understand, if not agree, why the Government cannot accept the amendment.

Lord Collins of Highbury: In light of those comments, I beg leave to withdraw the amendment so that we can move on to the next group, where we will have a much more comprehensive debate.
Amendment 36B withdrawn.
Amendment 36C not moved.

Amendment 37

Lord Fox: Moved by Lord Fox
37: The Schedule, page 5, line 35, leave out from “provision)” to end of line 37 and insert “is subject to the super affirmative procedure as set out in subsections (4A) to (4H).(4A) The Secretary of State must lay before Parliament—(a) a draft of the regulations, and(b) a document which explains the draft regulations.(4B) Where a draft of the regulations is laid before Parliament under subsection (4A), no statutory instrument containing the regulations may be laid before Parliament until after the expiry of the 30-day period.(4C) The Secretary of State must request a committee of either House of Parliament whose remit includes either the wider UK workforce and industrial relations, or the sector to which the regulations relate, to report on the draft regulations within the 30-day period.  (4D) In preparing a draft statutory instrument containing the regulations, the Secretary of State must take account of—(a) any representations,(b) any resolution of either House of Parliament, and(c) any recommendations of a committee under subsection (4C),made within the 30-day period with regard to the draft regulations.(4E) If, after the 30-day period, the Secretary of State wishes to make regulations in the terms of the draft or a revised draft, they must lay before Parliament a statement—(a) stating whether any representations, resolutions or recommendations were made under subsection (4D),(b) giving details of any representations, resolutions or recommendations so made, and(c) explaining any changes made in any revised draft of the regulations.(4F) The Secretary of State may make a statutory instrument containing the regulations (whether or not revised) if, after the laying of the statement required under subsection (4E), a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.(4G) In this section, references to “the 30-day period” in relation to any draft regulations is to the period of 30 days beginning with the day on which the original draft regulations were laid before Parliament.(4H) For the purposes of subsection (4G) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”Member’s explanatory statementThis amendment seeks to provide Parliament with the opportunity for enhanced scrutiny of the regulations made under this section.

Lord Fox: My Lords, Amendment 43 in this group is also in my name. In a sense, this provides a more general debate, to which the noble Lord, Lord Collins, has given us an amuse-bouche.
Amendment 37 introduces a super-affirmative process, the need for which the noble Baroness, Lady Chakrabarti, referred to, although not in those same words. Those noble Lords who have participated in the same Bills as me will be familiar with this format, because I have brought it to several Bills—indeed, I am doing so concurrently. I did not invent this process, but I feel that it is a very good way of giving Parliament a sense of ownership and oversight of the sort of things that we are talking about today. It seeks to provide Parliament with the opportunity for extended scrutiny.
As the amendment sets out, it would takes 30 days, which is a reasonable amount of time, and would involve the relevant committee—it is difficult to know just now what that committee would be because the Government are moving the tables around, so we have kept it as “relevant” at this stage. The committee would make recommendations and, in preparing the draft statutory instrument containing the regulations, the Secretary of State must take account of what the committee has done and of any representations or resolutions that have come from either House. After the 30-day period, if the Secretary of State wished to make regulations, there would have to be some sense  from the Government as to what had happened during the process of consultation. When the statutory instrument arrived, it would have to have approval in both Houses.
It seems to me that this is an entirely reasonable way of a Government acting in good faith. We have a problem with statutory instruments, in that they cannot be amended and are virtually never voted down by either of the larger parties when they are in opposition—which can sometimes be frustrating when I am sitting here. If the noble Baroness, Lady Noakes, was in her seat, I would pitch this as being a supportive way of giving Parliament some oversight of what is likely to be a relatively controversial process.
I turn to Amendment 43 in my name, and will reflect on the other amendments in the group. It is worth remembering that Clause 3 provides the power to make consequential provision—quite considerable power. It confers on the Secretary of State a regulation-making power to make further consequential amendments arising from the Bill; regulations that make consequential provisions that may amend, repeal and revoke an enactment passed either before this Act or later in the same Session as the Bill. It is an incredibly broad power, and it is absolutely clear, as we have seen from your Lordships’ committees, that this is something that concerns noble Lords.
The delegated powers memorandum sets out its justification for the Henry VIII powers. I am not going to read those out—I am sure the Minister will do that job for us. The Delegated Powers and Regulatory Reform Committee has been very clear in its verdict on the memorandum’s justification for the power: it is possible that not all the necessary consequential amendments have been identified in the Bill’s preparation. I think it is not just possible that they have not been identified, it is a certainty, given the lack of detail that we have before the Committee.
The problem is that the Government are taking an exceptional power either because they do not know what they want or because they do know what they want but do not know how to do it. This is a central problem with the Bill and these powers.
The DPRRC notes that even the Business Secretary at the time, Jacob Rees-Mogg, during the Committee stage of the debate in the Commons, characterised Clause 3 as
“almost so skeletal that we wonder if bits of the bones were stolen away by wild animals and taken and buried somewhere”.—[Official Report, Commons, 30/1/23; col. 89.]
It is a suitably florid phrase, as we have come to expect from Jacob Rees-Mogg MP. However, when someone of that political persuasion is convinced of the skeletal nature of this Bill, noble Lords opposite ought to be consumed with the same concerns. He specifically urged your Lordships to look at the clause and say that it is simply not something that we can pass into law as it is currently phrased. I did not think I would be standing here saying that I agree with Jacob Rees-Mogg, but I agree with him on this one. That can be used in evidence against me later.
Joking aside, the DPRRC’s report—I am not going to read it out verbatim because it has already been before your Lordships’ House—is damning about the powers that are contained in Clause 3. When the Minister  writes his letter in response to this report, I hope it says he agrees with the DPRRC and that he takes on its recommendations when it comes to clipping the wings of this extremely undemocratic clause. I beg to move.

Lord Prentis of Leeds: My Lords, I speak in support of this group of amendments, particularly Amendments 42 and 44, which, if agreed, would remove the unfettered power of the Secretary of State to amend, repeal or revoke primary legislation.
The strikes Bill is not a slight tinkering of existing legislation. What the Committee has before it is a far-reaching Bill. It is a draconian Bill which curtails the fundamental right to strike, weakens protections against unfair dismissal, violates ILO standards, and introduces the possibility of front-line workers facing dismissal for taking part in lawful industrial action. What we also have before us is a skeleton Bill, which until now has had little or no scrutiny—a Bill which has been rushed. It has been described as having Henry VIII clauses on supercharge and, as we have just heard, as a skeleton Bill lacking bones.
It is only 10 weeks since I had the privilege of making my maiden speech in support of two House of Lords committee reports which go to the core of our democracy: Democracy Denied? and Government by Diktat. In that debate, I spoke of the public’s growing distrust of our Parliament, not just in the devolved nations but throughout the UK. I acknowledged that the reasons for this were complex and that concern about the increasing use of statutory instruments was not something you would hear discussed in the pub or the supermarket, or even around the breakfast table. So why does it matter?
It matters because the processes of Parliament through which we govern are so important. They instil trust and confidence in our democracy. Secretaries of State who avoid parliamentary scrutiny call into question that very trust and confidence in our whole institution. It matters because global confidence in our economy is intrinsically bound up with confidence in our democratic traditions, and it matters because skeleton legislation could lead to the very government by diktat that noble Lords of all persuasions have set their stall against.
That is why the Bill we have before us today is so fundamentally flawed. It flies in the face of both those reports and, unless amended, it will give unfettered powers to the Secretary of State to revoke or amend primary legislation through regulation. That is why Amendments 42 and 44 are so important.
The Bill is deficient in so many respects. It is vindictive and divisive, and it does nothing to deal with the serious crises our public services are facing. The report of the Regulatory Policy Committee, which we have heard about, states that the Bill is not fit for purpose—a damning indictment by any standards. NHS Providers states that it will undermine partnership working in the NHS. The Joint Committee on Human Rights criticises the:
“Heavy-handed sanctions … compounded by vague rules”.
Comparisons made with other European countries simply do not stack up and have been roundly dismissed by those countries themselves. If the Bill becomes law, there is a real risk of contravening our international obligations. For me, it is simply unnecessary and harmful.
In the last few weeks we have seen public service workers, their unions and employers coming together to reach agreements, trying to help so many workers and their families who are suffering. Yes, it may have taken far too long, but both sides are now at the table, doing what they do best: talking, negotiating, reaching accommodations, finding ways forward and, most of all, working to restore relationships for the future. This Bill will damage all that good work. It is vindictive and malicious and it will set the scene for conflict and retaliation for the next decade, just at a time when there is light at the end of the tunnel.
I ask the Minister to accept Amendments 42 and 44. Failing that, I ask him to explain why he will not. More than that, I ask him to think again. Surely it is time for the Government to reconsider their position on the Bill and put it on the back burner, where it deserves to be.

Bishop of Manchester: My Lords, I support Amendments 37 and 43 in the name of the noble Lord, Lord Fox.
Many noble Lords have already commented on the Bill’s skeletal nature—I will not repeat their comments here. Amendment 43 would insert an invaluable safeguard, removing overreaching Secretary of State powers to amend, repeal or revoke primary legislation through secondary legislation. Liberty writes that, as it stands, Clause 3 is a “broad Henry VIII power”—we have heard that monarch referred to several times today; I fear I may refer to him again in a moment. It is also a prospective power that allows the Government to amend and revoke legislation not yet passed.
The delegated powers memorandum seeks to justify this power as a prudent provision to deal with any necessary consequential amendments identified in the Bill’s preparation. As the noble Lord, Lord Fox, reminded us, this means that the Government are taking this exceptional power either because they are not sure what they want to achieve or because they do not know how to get there. I do not believe either of those to be an adequate justification, and I am delighted to hear that Jacob Rees-Mogg may be of a similar opinion.
I enjoyed the remark of a noble and learned Lord earlier today that this is “Henry VIII on stilts”. It left me wondering whether I should be imagining the young Henry, fit and active, or the monarch in his latter—shall we say rather less athletic?—years. The older Henry would have crashed off his stilts to huge personal injury and embarrassment. I fear that the Bill, if enacted in its present form, without adequate parliamentary scrutiny of the exercise of these Henrician powers, will be an equally damaging and embarrassing moment in our nation’s governance.
Will the Minister please reflect on these probing amendments and come back to this House on Report with something more fit for the role and responsibilities of this kingdom’s Parliament in the reign of Charles III?

Lord Collins of Highbury: I will talk to our Amendments 42, 44 and 45; I also support Amendments 37 and 43. My noble friend Lord Prentis mentioned the debate we had on the reports from the Secondary Legislation Scrutiny Committee and the Delegated Powers Committee, Democracy Denied? and  Government by Diktat. The two chairs of the committees at the time led the debate and reflected opinion across the House. The noble Lord, Lord Blencathra, said that this is a trend: these are not just technical statutory instruments but impinge on people’s fundamental freedoms. The noble Lord, Lord Hodgson, reminded us, and it has been repeated many times, that these are fundamental policy positions that can be debated and considered but not amended or revised. They cannot reflect all the things we have been talking about, particularly consultation.
I give warning to the Minister. We have heard the quotes from Jacob Rees-Mogg and his concerns about this. When we get to Report, I think we will hear deep concern about the Bill from across the House, irrespective of where we might stand on the political spectrum. We are all united in this House about the dangers that this sort of skeleton Bill could lead to. Jacob Rees-Mogg is not just saying that because he does not trust the Conservative Government—I have no doubt that he does not trust future Governments with future powers, which is what these clauses are about. As the right reverend Prelate said, this is not just about powers to amend primary legislation. It is also saying, “We might not get it right, so we have to think about future legislative powers”. It is an amazing grab, which I do not think the House will put up with. It is really important that we reflect on these things.
I am always conscious of what the noble Lord, Lord Lisvane, said, and have repeated it on numerous occasions. When we come to fundamental policy issues, let us have a debate about it and take into account all the considerations. In the old days, we would even have a Green Paper—a radical idea—and then a White Paper. Then we would have a debate about the proposed legislation. We might not like the proposals, but we would be aware and at least we would have had a fundamental discussion. Here, we do not know what minimum service levels are, what powers Ministers are going to take, or the impact it will have on fundamental rights or even on primary legislation. Again, it is about a grab for power.
My noble friend Lady Donaghy said, “Gis a power”. I will keep repeating that; it is really quite useful, because it sums up where this Government have reached. They have run out of ideas and policies; they now just want to resort to narrative that they think will have appeal. I think they have even got that wrong, because I do not think the public will follow the narrative the Minister keeps repeating today. I think the people know who is responsible and how they want it resolved. We have seen it resolved in the health service and elsewhere. Our concern here is that this is an unacceptable power grab.

Lord Callanan: My Lords, as I set out in the previous group, which the noble Lord, Lord Fox, described as the amuse-bouche grouping, there are already sufficient checks and balances built into the legislation before any regulations can be made. These include the need to carry out consultations with key stakeholders, including employers, employees, relevant trade unions and their members, who are all encouraged  to participate in the consultations—we have some of the regulations out for consultation at the moment—and have their say in setting minimum service levels before they come into effect.
Parliament, including Select Committees, will also have an opportunity to contribute to the consultation and scrutinise the regulations. The Government firmly believe that this is the right approach. It ensures that a wide range of views can be gathered. Parliament can scrutinise regulations without significantly delaying the implementation of MSLs and therefore extending the disproportionate impact that strikes can have on the public.
Amendments 42 to 48 all seek to amend the provisions to make consequential amendments. The Government resist these amendments on the grounds that Clause 3 is a fairly standard clause, used regularly in primary legislation. Let me explain to the Committee what it is for. The power to amend primary legislation within the clause is a standard power with standard wording. Perhaps it will be helpful to give some examples of where it is on the statute book already. It is in Section 182 of the Health and Care Act 2022, Section 47 of the Corporate Insolvency and Governance Act 2020, Section 23 of the Bus Services Act 2017—I am sorry that the noble Baroness, Lady Randerson, is not here to hear that—and Section 66 of the Children and Social Work Act 2017. This power is not unique to legislation introduced under a Conservative Government. I say to the noble Lord, Lord Collins, that Section 51 of the Constitutional Reform and Governance Act 2010 also includes the same power. Additionally, the report, The Legislative Process: the Delegation of Powers, published by the Lords Select Committee on the Constitution in 2018, states:
“Delegating power to make provision for minor and technical matters is a necessary part of the legislative process … Delegated legislation, which is subject to less parliamentary scrutiny, should only be used to fill in the details.”
That is exactly what this power is intended for.
I remind noble Lords that the DPRRC did not draw attention to or raise concerns about this delegated power in its report published on 2 February. I know that it did on others, but it did not with this one. The power may be used only to make amendments to other legislation that are genuinely consequential on this Bill. It is there purely to ensure that the legal provisions within this Bill can be maintained after they have received Royal Assent. Therefore, the Committee will understand why I cannot support these amendments.
Amendment 48 seeks to remove the power for the Secretary of State to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd. The Government again resist this amendment on the grounds that the provisions of this Act will extend to England and Wales and Scotland. Employment rights and duties and industrial relations are reserved in respect of Scotland and Wales. Therefore, it is right that the Secretary of State has the power to make consequential amendments to primary legislation made by the Scottish Parliament or the Senedd, if required to ensure that the new legal framework operates in a coherent way across the entirety of Great Britain.
The disproportionate impacts that strikes can have are no less severe on people in Scotland or Wales than they are in England. They have every right to expect the Government to act to ensure that they can continue to access vital public services during strikes. The Government will of course engage with the devolved Administrations as appropriate. I have met devolved Ministers to discuss the Bill. Obviously, we will engage further if any consequential amendments are required to Acts of the Scottish Parliament or Welsh Assembly. As this clause is completely standard and has been introduced in several pieces of legislation, including by a previous Labour Government, I hope that noble Lords will feel able to withdraw or not move their unnecessary amendments.
Turning to Amendments 45 and 46, I believe that the intention of the noble Lord, Lord Collins, is to delay the commencement of regulations providing for minimum services until the Government have assessed the Bill’s impact on recruitment and retention in the public and private sectors, and the impact on those with protected characteristics. However, the amendments as drafted are to Clause 3, which provides a power to the Secretary of State to make consequential provision. Therefore, the amendments would delay commencement of regulations which make consequential amendments to other legislation.
Speaking to what I believe is the intended purpose of the amendment, I say that the Government resist it. As I have already set out in my response to the noble Lord, Lord Fox, the Secretary of State must consult on regulations, and they must be approved by both Houses before they can be made.
Impact assessments will be published for all subsequent regulations on minimum service levels and will, as always, contain a public sector equality duty assessment. I also draw noble Lords’ attention to the already published impact assessments for the Bill and currently ongoing consultations on establishing minimum service levels in ambulance, fire and rescue, and rail services, all of which contain public sector equality duty assessments. I hope that I have convinced noble Lords to withdraw and not move their amendments.

Lord Fox: I thank noble Lords for their contributions to the debate on this group. I am particularly grateful to the right reverend Prelate the Bishop of Leeds for painting a picture of King Henry VIII strutting across the Field of the Cloth of Gold on a pair of stilts.

Bishop of Manchester: Manchester.

Lord Fox: What an awful mistake to have made—I am very sorry and correct the right reverend Prelate’s territory. This is a serious group of amendments. The fact that it comes at the end of a day, and a long week, should not detract from that seriousness.
Listening to the Minister’s response, I was struck by the tone, which is: “This is a perfectly reasonable process. We are having a consultation and doing this and that. These people can contribute, and Parliament can contribute through the consultation”. It is for Parliament to make these decisions—not for the Government to do so, allowing Parliament to feed a little into the process.
The Minister has proposed the particular frame that we see in Clause 3 too many times. He went through a short list of Bills. I am aware of two of those, having participated in them, and I spoke against that power on both occasions. None of those is seven pages long and devoid of the detail required, but that is what the Bill is.

Baroness Chakrabarti: Surely all these other Bills consist of a bit more than two delegated powers. That is what this Bill is.
I am beginning to feel sorry for Henry VIII. He was born a King and born to rule. I am thinking more of Julius Caesar, who was supposed to be part of a republic and led to its demise so that it became an empire. How did he begin that process? It was by diktat, by becoming a dictator. Powers such as this pave the way for that.

Lord Fox: I thank the noble Baroness, who has now introduced history; having failed geography, I will not enter into the history debate. She is completely correct: these powers are being taken for a Bill that is nothing. For the Minister to use the examples he did was completely inappropriate: they are different Bills of a different nature and scale.
We look forward to the Minister’s official response. I think he promised a letter on the DPRRC. I will study Hansard carefully on this. As the noble Lord, Lord Collins, put it, we will be doubly resolved that this issue cannot be left in Committee. We will certainly come back, unless the Minister’s letter turns out to be better than I normally expect. That said, as usual, I beg leave to withdraw.
Amendment 37 withdrawn.
Amendments 38 to 41 not moved.
Schedule agreed.
Clause 2 agreed.
Amendments 42 to 48 not moved.
Clause 3 agreed.

Amendment 48A

Lord Hogan-Howe: Moved by Lord Hogan-Howe
48A: After Clause 3, insert the following new Clause—“Review: extending restrictions to other services(1) Within the period of one year beginning with the day on which this Act is passed, the Secretary of State must review the extent to which this Act has achieved its objectives.(2) The review must consider whether it would be expedient to enact further legislation applying the restrictions provided for under the Schedule to other services, in particular, services that support police services, including forensic investigation services and telephone call handling services.(3) On completing the review, the Secretary of State must lay a report before Parliament.”

Lord Hogan-Howe: Amendment 48A is tabled in my name and that of the noble Lord, Lord Greenhalgh. I am conscious that it is the last amendment, and I will be brief. I mean it; I do not intend to take too long. I know this has been a big political debate, as has been demonstrated today. My reason for this amendment is not to do with whether the Bill should be here or whether there should be a minimum standard; it is to do with who should be on the list if the Bill becomes an Act.
The reason why I became interested this is twofold. First, in the list of services that are to be included we have ambulance and fire, but the police are excluded, and clearly they are one of the three emergency services, so I was intrigued by that; it seems odd. Secondly, that has been compounded to some extent by the Home Office’s response, for which I will say thank you in a second. I do not think it appreciates the fact that the civilianisation, which is what it is termed, of the police over the past probably 20 years has been a really good thing. It has taken cops out of doing things that they do not need to do and has put people who have better skills in to do them. We have moved from a situation where probably 90% or so of the police were police officers, to a stage now where probably nationally about two-thirds are cops and one-third are “police staff”, which is the term now used for civilianisation. Those people have some incredible skills and are part of the delivery of front-line service. They are not merely, important though it is, support. They are part of the front line.
I am grateful to the noble Lord, Lord Callanan, who is no longer in his place, for referring my queries in two places to the Home Office, and I am also grateful for the response to my query from the noble Lord, Lord Sharpe, which I received yesterday. Even though I received it yesterday, I have not withdrawn my amendment from the Marshalled List as I do not think it really addressed my concerns. I raised two particular groups of police staff whom I thought were representative of the front line, but they are not the only two I could have raised. One was call handlers and the other was forensic scientists and forensic specialists, because I thought they were the easiest to sketch out quickly, but I want to touch briefly on some of the groups I could have mentioned.
The letter I received talked about call handlers only, and I was not persuaded by it for this reason. Of the Metropolitan Police, which has around 50,000 people even now, around 1,500 of them—probably nearer to 2,000—are call handlers. You could argue that that is only 4% of 50,000, but when the Home Office responded on how we can rely on the call handling still happening if police staff withdraw their labour, it assumed that police officers were going to backfill. There are problems with that assumption. First, 1,500 is quite a large number, and it is 1,500 not of the 50,000 but 1,500 front-line police officers. There are probably around 17,000 of them, so we are down to find about 10%. My concern is not just the fact that you would have to take them off the front line to backfill for call handling; you have to train them. They do not have the skills. They cannot do what I used to do, which was merely use the radio, answer the phone and make a written note. You now have to use a computer to work the radio; you have to  use a computer to record all the data. There are an awful lot of things you have to be able to do before you can work in a control room. It is not as simple as going there and working. You cannot train someone in one year and then for five years, say, they do not do anything but they just turn up on a Monday and do it.
Secondly, we are talking about a very significant number of calls. Annually in England and Wales there are more than 20 million telephone calls with people in life-threatening situations or, at the other extreme, things that may not be life-threatening—but you do not know until you answer the phone which it is. It is essential that phones are answered and, frankly, it is the main way that people in this country still access police services. I know that there are more online options but, for an emergency, you are going to ring. That call has to be answered, which is why I majored on it.
In forensics, the number of these people is smaller but very significant. There are probably three levels of service provider: the people who go to the scene of the crime and collect the evidence at the scene; the people who work in the lab; and the specialists who try to interpret the results of the first two. They have substantial skills and are very well qualified, and there is now a forensic-accredited regulator. It is impossible for cops to go in and do that job. At the moment, I do not know the exact number of them—the Home Office might possibly mention this in the reply—but I suspect that 98% to 99% of people in forensics are police staff, quite properly. This means that it does not have the skills and it does not have the numbers, and so really is struggling. You could argue that, for a few days, this may not matter too much, but it matters for those low-volume serious crimes, such as murder and terrorism—I will not go through the list as noble Lords will know what is on it. It seems to me pretty important that forensics is still carried out.
The third group, which I did not mention the first time, is surveillance people. It used to be that police officers were the only people who did surveillance, but that is not the case now. Many forces in the country have police staff who are part of the surveillance teams. The argument goes that, if you do not need to arrest someone, why do you need police powers? That is quite right. If you have good observation skills, and are good at noting detail and at blending into the background, that is even more reason why you do not necessarily need to be a police officer. However, it is a big issue because the surveillance teams are employed only on serious crimes—they are not employed for minor crime; they will be used only for serious crime because it drags in so many resources. Without going into numbers, you are talking about significant numbers to get a surveillance team on the ground. It is important that that is still possible.
The final area is one that we do not talk about much in public but one to keep in mind. When you are dealing with serious crime, from terrorism to murder to other serious crimes, one technique involved is listening to telephone calls—surveillance and intercepting. If there is a threat to life, that will be within 24 hours, and probably seven hours a day. Someone has to do it, and it is now members of police staff will carry that out; there is no need to be a police officer.
I mentioned those series of examples, but the response from the Home Office talked only about call handlers. For the reasons I have set out, the response did not fully reassure me.
Noble Lords might be grateful to know that this is my final point. I mentioned in the Cross-Bench meeting my worries about the coastguard service, and the noble Lord, Lord Callanan, faithfully reported that back to the Home Office. People who do not live on the coast often forget that the only way you can co-ordinate the rescue of people at sea by people who are on land, in the air or on the water is through the coastguard. It has the facilities to communicate and map out where people are. It is no good talking to a police control room; it does not understand how things move around on the sea.
The coastguard service is vital, every day. It co-ordinates the lifeboat charity, the outsourced helicopter service, the police, ambulance service and fire service—we all know the people who get involved—and the coastguard who patrol at that point. If the coastguard is not there, I am not sure who the fallback is. It may be that there is a military option but the military has been pared back so significantly that it does not have coast-wide coverage for this reason. It may have coast-wide coverage for defence but I am not sure it has it for rescuing people and for the co-ordination of all the services involved.
I think it is worth considering these people when we talk about life-saving options and emergency services. There was a choice of two services other than the police, but I say that the coastguard service should be considered seriously. As I said, I was not reassured entirely by the Home Office’s reply.

Lord Greenhalgh: My Lords, I support the noble Lord, Lord Hogan-Howe. As the deputy mayor for policing and crime alongside him when he was a very distinguished commissioner, I always defer to his operational understanding. This is someone who led a very large service and understands the constraints that would occur if we saw a withdrawal of labour from these very specialist police staff who do more than just support police officers on the front line.
I draw attention to the fact that there is a real inconsistency here. As a former Fire Minister I am delighted to see that fire is included when it comes to call handling, and as the son of a surgeon I am delighted to see that the London Ambulance Service and other ambulance services are included in the Bill. Let us take London call volumes as an example, to give a sense of the order of magnitude. The Met answers 13,000 calls a day, which is nearly 5 million calls a year. The London Ambulance Service answers just over 2 million calls a year, while for the fire service it is probably nearer to 150,000 calls a year. We need parity when it comes to our three blue-light services, particularly because, as the noble Lord, Lord Hogan-Howe, put it, some of these calls are about wheels moving fast to save lives, even if they do not always know that is the case. I just do not understand not having the same approach to all three blue lights.
The noble Lord also raised forensics. The clear-up rate is about 95%—I hope that is still true—for murders in our capital city. That is largely down to a team effort that includes the use of forensics, and we have just heard about the importance of surveillance in tackling crime.
I think that even at this late stage we should consider the police service within those public services where we require a look at minimum service levels. It makes intellectual sense, and I know that at this stage we could introduce these amendments. Based on the response from the Home Office, we will see whether we bring this back on Report in the right part of the Bill—we were a bit late tabling the amendment, for various reasons.
It makes sense to have parity between the three blue lights. That is why I support the noble Lord, Lord Hogan-Howe. As deputy mayor, I always knew to defer to his operational excellence.

Lord Fox: My Lords, we are not particularly in the business of adding people to this Bill. If the noble Lords had attended all our sessions, they would have heard that we are not terribly appreciative of the Bill’s objectives, nor the way in which it goes about them. But I am grateful to the noble Lords for highlighting, as we pointed out earlier, the curious selection of services. We particularly questioned the decommissioning of nuclear installations, for example, where voluntary agreements already exist on a pretty comprehensive scale, so why is this in there?
I am also grateful that they have attracted a Home Office Minister here to answer the question. My question for him is: how much consultation was held with the Home Office by what was then BEIS, which drew up the Bill, about choosing who was on this list, and indeed who was not, when it came to drafting the legislation? That would be an interesting point.
I could not resist pitching in on forensic services. As the noble Lord, Lord Hogan-Howe, knows, since the change in the whole service, essentially its privatisation, a large lump of that service went into the police force—I was going to say it was “captured”, and that is not supposed to be in a pejorative sense. In the Metropolitan Police, a huge proportion of what was often delivered externally to the police force is now being delivered internally; I think it is around 80% in the case of the Met. That leaves 20% of the service coming from private sector providers and what I call specialist suppliers, which are often academics or people who have set up organisations. I suggest that it is much harder to make those two types of supplier fall within the remit of what the noble Lord envisions, given the debate we have had about involving private sector suppliers in the health service or transport. That debate has clouded how this would operate. Still, a large proportion of the forensic service is within the police ambit when it comes to management.
With those notes, the key issue is to ask the Home Office why fire and rescue is in but the police are not. What consultation process did that go through, and how did the decision come about? We would be interested to see inside the box.

Baroness O'Grady of Upper Holloway: My Lords, I get the impression that the noble Lord, Lord Hogan-Howe, did not necessarily want to associate himself with the whole Bill, but was asking questions about who was included and excluded and why.
From our Labour perspective, one of the key worries about the Bill has been: are we going to see executive powers taken to add in sectors at different stages without proper scrutiny, proper accountability or consultation? Many see this as an attempt to ban strikes, a fundamental human freedom, through the back door. It might get to the stage where it would be easier to have a list of sectors not covered as opposed to those that are.
We oppose this amendment; fundamentally, because it fails to address the root causes of the problems people face. I hesitate to advise the noble Lord, who knows far more about this than I do, but since 2010 we have seen police funding cut by £1 billion. We have seen huge cuts to police officer numbers of 20,000 and a similar number of support staff being cut. In the Casey report, it was pointed out that those cuts in support staff were having a direct impact on police officers, who were having to cover that work too and that impacts the effectiveness of the service.
It seems to me that these are far bigger issues at a time when so many staff in the police service and elsewhere are facing real-terms pay cuts year after year, which have a real impact on morale, recruitment, retention and our ability to deliver the high-quality service that we all want to see. My sense is that it would be much better to focus on tackling the root causes of concern and discontent rather than suppressing the symptoms.

Lord Murray of Blidworth: I thank all noble Lords for their contributions to the debate and in particular my noble friend Lord Greenhalgh and the noble Lord, Lord Hogan-Howe, for their amendment.
This amendment seeks to require the Government to undertake a review into whether and to what extent the legislation has met its objectives and whether the legislation should be extended to additional services, particularly police support services. On completion of the review, the report would be laid in Parliament. The Government are committed to reviewing the impact of the Bill within five years of when the first secondary legislation comes into force. Given that the detail of minimum service levels will be set out in the regulations that follow the Bill, this is an appropriate approach and timeframe.
On the specific point about extending the Bill to additional services, it is worth repeating that the key sectors covered by the Bill are broadly the same set of services that were listed as important public services in the Trade Union Act 2016, which have long been recognised as being important for society to function effectively. The 2016 Act did not include policing, in part because the prohibition on police officers taking strike action meant that this was not felt necessary.
Police staff across the country make an exceptional contribution to policing and we are grateful for the professionalism and dedication they show in their work. Police staff, including police community support officers and other members of the police workforce who do not have warranted powers, have no restrictions on their right to take industrial action and there are no provisions currently in place to provide minimum service levels. However, chief constables have a statutory  duty under the Civil Contingencies Act to ensure that plans are in place to maintain key services when instances such as a strike occur. When police staff have taken strike action in the past, police forces have put in place plans to ensure resilience among their police officer workforce to ensure that essential front-line services are maintained.

Baroness O'Grady of Upper Holloway: Similar responsibilities apply in the fire service, in respect of the Civil Contingencies Act, so why is it necessary to include fire services in the Bill?

Lord Murray of Blidworth: The context for the police is clearly different from that for the fire service, in that the vast bulk of police officers, as described by the noble Lord, Lord Hogan-Howe, are covered by the provisions of the earlier legislation precluding them from striking. As we discussed, this puts them and the force in a different category.
Contingency plans are largely based on the redeployment of police officers to cover operational staff roles. Police officers are of course prohibited from participating in strike action and, therefore, chief constables are able to meet any such obligations under the Civil Contingencies Act. I hope that goes some way to address the points raised by the noble Lord, Lord Hogan-Howe. The Government currently have no intention to add to the sectors covered by the Bill, and any future amendments would require separate primary legislation.

Lord Hogan-Howe: The Minister’s point—that arrangements are being put in place for police officers to backfill—is fair, but there are two problems: if you have fewer and fewer cops who can be in the control room all the time, you have to keep them trained, and then you have to withdraw them from the street, which is a significant diminution. First, if you have to train them every year, that costs money and takes time—and then you presumably have to withdraw them when there is some kind of action. For me, it is not a reassuring answer to say that police officers can just backfill, because I am afraid that they cannot without training or experience in this vital part of the service.

Lord Murray of Blidworth: The contingency plans are of course already enabled in the Civil Contingencies Act and, although this situation would be less preferable than the one that prevails in a non-strike scenario, it would be successful in the Government’s view. Furthermore, in the event that police staff take strike action, or when they have taken strike action in the past, police forces will or have put in place plans to ensure resilience among their police officer workforce, to ensure that essential front-line services are maintained. However, as noble Lords would expect, we will keep under review the sectors that we are discussing in this debate, and will not hesitate to take further action if we judge that necessary.
I will briefly address some of the specific points raised by noble Lords. Clearly, from the Government’s perspective, we accept that the points raised by the  noble Lord address a broader class of people—of police auxiliaries, if I might style them like that—than just those in call handling. Of course, he made a good point that this goes across the piece; the vital work done by broader police staff is something we should consider.
The noble Lord raised points in relation to His Majesty’s Coastguard. I confirm that the Department for Transport is still considering which other sectors minimum service levels may apply to. Therefore, the position on applying MSLs to coastguard services will be kept under review, and any decision regarding these services will of course be subject to consultation. Similarly, my noble friend Lord Greenhalgh made some powerful points about the importance of auxiliary staff in this context, and I take those very much on board.
As to the points raised by the noble Lord, Lord Fox, I can confirm that there was consultation with other government departments prior to the selection of the list described in the Bill.
Turning to the points made by the noble Baroness, Lady O’Grady, this is clearly not an attempt to ban strikes. The key sectors covered in the Bill are broadly the same set of services as those listed in the Trade Union Act 2016, which have long been recognised as being important for society to function effectively. Strike action in these sectors has the potential for far-reaching consequences for members of the public who are not in any way involved in the dispute, and it is only right that these sectors are included within the scope of the legislation.
For all those reasons I invite the noble Lord to withdraw the amendment.

Lord Hogan-Howe: I am grateful for the Minister’s reply and for the contribution of other noble Lords. I was not sure whether the Minister said that the Home Office or other departments had been consulted, but I will let that rest. I am grateful for the consideration and take his point that there will be further review in due course, be it the police or the coastguard. I am content to withdraw the amendment.
Amendment 48A withdrawn.

  
Clause 4: Extent
  

Amendment 49 not moved.
Clause 4 agreed.

  
Clause 5: Commencement
  

Amendments 50 and 51 not moved.
Clause 5 agreed.
Clause 6 agreed.
House resumed. Bill reported without amendment.

Royal Assent

The following Acts were given Royal Assent:
Supply and Appropriation (Anticipation and Adjustments) Act,
Genetic Technology (Precision Breeding) Act,
Social Security (Additional Payments) Act,
Seafarers’ Wages Act,
Trade (Australia and New Zealand) Act,
UK Infrastructure Bank Act.

Public Order Bill
 - Returned from the Commons

The Bill was returned from the Commons with amendments and a reason.

Trade (Australia and New Zealand) Bill
 - Returned from the Commons

The Bill was returned from the Commons agreed to.

UK Infrastructure Bank Bill [HL]
 - Returned from the Commons

The Bill was returned from the Commons agreed to.
House adjourned at 6.42 pm.